Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
I need to have my son tested for a learning disability; but when I talked with the high school counselor at his school, she mentioned medications that might be used to treat my son. I only wanted him tested and to get more help learning. I don't want to medicate my son. What will happen if I refuse to do this and he does have a learning disability? Is it my choice as a parent? Or do I look stupid for asking for help and this is their answer?
By federal law, school staff are not allowed to recommend or require that parents medicate their children. That decision is reserved for the family in consultation with their physician. If the school staff feels that a child has a condition that might warrant medication, they can suggest that the child be evaluated for the condition; but they may not discuss medication. Equally importantly, schools may not condition eligibility for special education or participation in any special education program on agreement to take medication.
How is it legal for a school not to accept any diagnosis or assessment other than their diagnosis? My child was diagnosed by a licensed medical professional, and the school refuses to accept that diagnosis and provide services for my child.
There are several things to be aware of here. First, legally a school district is required to consider outside evaluations but is not obligated to accept the findings and recommendations. However, if they do not accept the findings or recommendations, they must provide you with an explanation for why they disagree and a basis for the disagreement.
Sometimes, schools reject outside testing just because they don't like the results and don't want to be obligated to do the things that are recommended. However, there are situations where private clinicians and school evaluators are using different criteria to analyze the test results. In fact, the standards that private clinicians use for diagnosis are not always identical to the standards that the schools use. Thus, it is possible for the private clinician to be correct in their diagnosis based on their criteria and for the school to be correct based on their criteria.
One circumstance where this is most likely is when the private clinician concludes that the student is performing significantly below their potential but still at an average or above average level. The school might acknowledge the discrepancy but take the position that unless the student is performing at a below average level compared to their peers, they don't qualify. This is a frequent dispute, and there are arguments on both sides.
A second common basis for disagreement is that the school team concludes that the child may have a disability but does not need special education. The need for some form of special education is one of the criteria to be eligible for special education. Schools often take an overly restrictive position as to what is special education or whether the student needs it. By law, special education is specialized instruction, including modifying the content, method, or mode of delivery of instruction, and can include instruction in regular education as well as in a separate classroom. Schools sometimes argue that a student will only qualify if they need special ed. instruction in a special ed. room or from a special ed. teacher.
You should discuss the school's position with your private clinician and see if there are further tests or other data that the clinician can provide. You may also need consultation with a knowledgeable special education advocate or attorney.
Our son, who is now about 13 years old, is not progressing in school. We think he has a learning disability but have been unable to obtain any educational testing or assessment data from psychologists. We currently live with our son and other children in Pakistan and have found that there is not a system for working with children with LD here. However, our son is a U.S. citizen, so we are planning to have him move back to the states with family.
We are wondering how we get the initial referral to begin the special education process at his new school if he does not yet live in the U.S. Is this possible?
When a child is entering a new school system, the parents or guardian may immediately request an evaluation for special education. However, the public school is not automatically required to conduct an evaluation. The more information that can be provided to the school to support the need for the evaluation, the more likely they are to agree to the evaluation. This is especially important in situations such as yours, as schools are not as likely to conduct an evaluation when there is no prior history of difficulty in an American public school.
One important step to improve the likelihood that the school will agree to an evaluation is to obtain a comprehensive independent evaluation to document your child's problems. The school is required to consider this evaluation but is not required to accept its findings. As a result of the new requirement that schools consider whether inadequate instruction may be the cause of the learning problem, schools are now far more likely to defer evaluation until after the student has received a period of intensive specialized intervention in regular education (Response to Intervention — RTI). This makes it harder to secure immediate evaluation in situations such as yours and makes any evidence of prior problems and unsuccessful efforts to address these problems especially important.
My son was classified in pre-k as preschool handicapped. He was declassified in kindergarten, but the school gave him a 504 plan. He gets speech, OT, and PT in school. He is now in first grade. His writing is poor, and it takes him two days to copy two sentences. In September I asked the school to re-evaluate him to see if he now would qualify for an IEP through the child study team.
In January, the case manager called me for a meeting, where I was asked to take my son for a pediatric neuro evaluation. I did this within 2 days of this meeting, by just pure luck of getting him in a cancellation spot. The neurodevelopmental pediatrician evaluated my son, looked at all evaluation summaries from pre-k, and said that the school should now re-evaluate him again because he is positive at this time his scores will qualify him to be classified. He said my son is dysgraphic, and that was all so far. I have not received his report, yet; but he told me before I left to write a letter requesting the child study team to re-evaluate my son.
When I told my son's case worker that I needed to deliver a letter to her and what it was for, she told me this doctor does not know the codes and is wrong. I have a hard time believing this. I feel as though I need to listen to the doctor who evaluated my son over her, and feel I should submit this letter even if it upsets the school. Is this the right thing to do?
Dear Donna:
First, many people do get confused, including doctors, because the clinical criteria for disabilities and the educational criteria for disabilities are often overlapping but not the same. Thus, a clinical diagnosis does not automatically mean that there is sufficient basis for an educational label of disability. However, the doctor's evaluation cannot be ignored by the school. It must be considered, and the school must provide you the reasons that they feel an evaluation is not needed. Further, you have a right to request an evaluation at any time.
The doctor's recommendation provides further support for your request but is not a necessity for making the request. It does give you more support for the request. If the school is not willing to honor your written request, they are supposed to 1) give you a written explanation that they are denying the request, 2) explain the reason they are denying the request, and 3) explain your right to request a hearing to challenge their refusal to conduct the evaluation. If you give them a written request and they do not do this, they are in violation of the law.
I have a 4 year old with hydrocephalus and a ventriculoperitoneal shunt. I've been submitting applications for Supplemental Security Income (SSI) but have been denied all three times.
I recently started to notice that my daughter writes words, numbers, and her name backwards. No matter how many times you show her correctly, she keeps doing it backwards. I have called hospitals to see if there are tests for her but all I've been getting is a call back three to six months later. I really need some advice or even a lead on where to go. Thank you.
Dear Aresenia:
You need to consult with a knowledgeable SSI disability appeals lawyer concerning the possibility of filing an appeal of the denial of benefits for your child.
There are several organizations that represent lawyers that handle SSI cases. You can do a Google search or contact the American Bar Association Mental and Physical Disability Law/Bazelon Center Web site for a list of lawyers that do disability cases.
With regard to child having trouble with reversing letters and numbers, this is often reflective of the presence of a learning disability. You may want to consult with a clinical psychologist or neuropsychologist for evaluation of your child's reading and writing to determine if there is a problem with the way her brain processes information.
Many hospitals, especially children's hospitals and hospitals with medical school affiliations, have clinics that conduct psycho-educational evaluations. However, you should be forewarned that many hospital clinics may use medical criteria that are different than the eligibility criteria used by the schools. Therefore, it is important to make sure that the evaluator is familiar with the special education criteria for LD, as well as the clinical criteria.
My child has severe dyslexia, as determined by a private evaluator. We are trying to get his school to provide services; however, this could take 30 weeks (losing an entire school year). I have been looking everywhere in my county for tutors, etc. to help him in the interim as long as I can afford it, but am finding nothing. Do you have any recommendations on where to turn? I live in Palm Beach County, Florida.
Dear Michelle,
Although in reality, getting a child determined eligible for special education can sometimes take a long time — even 30 weeks — but by law, this should not occur. You should check your state's special education regulations for the specific timeframes from date of referral to completion of consent to completion of the evaluation.
In any event, if you decide you need to secure tutoring services in the interim, you may consider providing the school with a "unilateral placement" letter, notifying them that you are obtaining the private services due to their failure to provide appropriate (or any) special education services and that you want them to pay for the private services. Giving this letter does not obligate them to pay, but may give you a basis for pursuing reimbursement from them.
As to tutoring services in Florida, I suggest you contact the Learning Disability Assn. of Florida, as well as the federally funded Parent Training Center in your area for ideas for sources of tutoring. You can find the closest parent training center to you at www.taalliance.org.
Can my son who attends private school have access to an IEP and LD reading resources at the public school in our district?
Dear Laurie,
Voluntarily enrolled private students have the right to be evaluated by the public school to determine if they have a disability. If so, the school may offer them a "service plan," though the public school has lots of discretion about what services they offer to private school students.
If you wish to have an IEP to be implemented by the public school at the public school on a part time basis, you may request this, but the public school is not obligated to accommodate the scheduling and other issues that may be most workable for your student in relation to their participation at the private school.
What if a school system does not meet the requirements for re-evaluation? I understand that a re-evaluation must be done within three years of the last evaluation. What recourse do we, as parents, have if that deadline is not met?
Dear Elizabeth:
There is no explicit remedy provided in the IDEA for failure to complete a three-year evaluation in a timely way. You have the option of filing an administrative complaint with the state Department of Education or requesting a due process hearing.
You might also request an independent evaluation at public expense on the grounds that the absence of an evaluation was equivalent to an inadequate evaluation. Doing so might well trigger the district to quickly decide to conduct an evaluation after all.
As a certified LD teacher, I recognized signs of SLD in our 18-year-old from a young age, but since we were homeschooling the public school would not test her. I just taught her coping strategies and adapted as needed.
She is now in college, has completed 33 college semester hours, and has a 3.5 GPA. However, she is currently taking her first college math course. She got a D on her first test and is certain that it is because she ran out of time. She needs to be able to ascertain she's not reversed any digits and she works more slowly than most people for that reason. The college can't make accommodations without documentation but our insurance doesn't cover that type of testing.
Dear Kathi,
If your daughter was homeschooled, never enrolled in public school and now is in college, neither the public school nor college has a current duty to conduct an evaluation to determine if there is a learning disability. Public schools do have an obligation under Child Find to identify and evaluate children between the ages of three and 21 that are suspected of having disabilities, if they reside in the district and attend public school or attend a non-public or home school within the district, but that obligation generally expires when the student graduates or is no longer eligible for special education.
If your insurance won't provide coverage, your best options would be to try to find a university or public hospital with a diagnostic center that would test for free or at low cost. In addition, the Masons offer LD clinics in various parts of the country that are available at reduced or no cost. You might be able to find a clinic sponsored by them or a similar group that would test without charge.
Under the new IDEA laws, how long does a school system have to respond and/or test a child if a parent requests testing? Is the school required to test?
—Cindy
Dear Cindy:
The time period within which a school must respond to a parental request for testing is determined by state law. Schools are not obligated to test a child just because a parent requests testing. However, whenever a parent submits a request for testing, the school district is obligated to inform the parent of whether the school will do the testing or is refusing to do the testing. If the school is agreeing to the testing, it must explain to the parents what testing is proposed and obtain the parents' written informed consent to the testing.
If the school refuses to do the testing, it must inform the parents of the decision to refuse to test, the reason for the refusal, and that the parents have the right to request a due process hearing to challenge the refusal to test. The IDEA requires that schools complete the evaluation within 60 days of receiving parental consent for evaluation, unless state law specifies some other time frame. You should check your state's special education law for the timeline for testing from the date of consent and whether the state law provides a deadline for responding to the parents' request for testing.
My son's school has seen him struggling all year long. He failed the Florida state standardized exam. As a result, he is now attending summer school. The school decided to evaluate him at the very end of the year, so there's nothing that can be done.
Further, I was advised by the school psychologist this week that although my son exhibits ADHD and a learning disability, he scored below average on some tests and a little above average on others, giving the sense that he's average. Therefore, no help will be provided by the school system next year.
Is there anything I can do to fight this? My son has struggled with school since kindergarten and is now in 3rd grade. He repeated first and may have to repeat third. Thank you.
Dear Maria:
Under the IDEA, school districts are responsible for "Child Find," which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluation is needed, conduct needed evaluations with parental consent, and, if the child is determined eligible, assure that the child has an IEP within 30 days after the eligibility decision.
If your child was having problems for a prolonged period of time, it may be that the school violated the Child Find requirements by failing to evaluate your child in a timely way. In addition, it appears that the school may be using overly restrictive standards for assessing whether your child has a disability and/or whether the disability impacted his educational functioning (including non-academic performance).
The schools should not rely on any single test instrument in making its decision and must consider the child's functional performance, as well as the child's academic and test performance.
Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.
I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?
A school should not conduct an individualized evaluation of a child for purposes of diagnosing or identifying a disability without the written informed consent of the parent.
ADHD rating scales are assessment tools used for the purpose of determining whether a child has ADHD. As such, they suggest the school is conducting an evaluation of that student, which must be done with the consent of the parent. Schools are allowed to conduct school-wide evaluations of all students without consent, but are not supposed to conduct individual evaluations to assess disability without first informing the parents of the desire to evaluate, obtaining the parents' input about whether an evaluation should be done and the components of such an evaluation, and obtaining their written consent for the evaluation.
If an evaluation was done without consent, or if a student's file has any records that the parents object to, there are procedures under the federal Family Educational Rights and Privacy Act (FERPA) and most states' school records laws, for reviewing and objecting to specific records or information in the file. If the school does not agree to the parents' request, there is a procedure for requesting an administrative hearing to challenge the presence of the objectionable records.
What does the phrase "mandated accommodations" mean for a child with an IEP? Does it mean that when the child is offered the accommodation(s) that he or she must use them all of the time? For class work? For school testing? For state testing?
Is there a law that states that the child is required to take the accommodation? Three of my seven students have declined using them except for during the state testing. They are being told that they must use them all of the time. Of course the probability exists that it may be to their benefit; however, in specific situations children have opted out and done well.
Is it their right to be able to choose or must they be coerced/forced to comply? Several other teachers and I would be most grateful for your advice on this matter.
Dear Pam:
Your question addresses the meaning of the phrase "mandated accommodations." I am not sure of the specific circumstances in which the phrase is being used, but as a general matter, accommodations are mandated if they are listed in the child's IEP. They may be listed as applicable under all circumstances or the IEP may describe them as applying under some circumstances, but not others.
Generally, though, if there is a need for an accommodation, it should be provided consistently in the various settings where it would be relevant to the child's ability to function in relation to the specific task.
In addition, there are various ways that accommodations are sometimes qualified, through language such as "as needed," "at teacher discretion," "at student request," or the like. If the parents and team feel that the child needs the accommodation, it should be written in declarative language. If the accommodation is only needed from time to time, some language should be included to describe the circumstances and to ensure that it will be used when needed.
If a child opts out of using an accommodation, it may be because they don't need it (as evidenced by their succeeding without it). However, many kids may opt out of an accommodation because they are embarrassed, don't want to be viewed by their peers as different, or may have unrealistic awareness of the importance of the accommodation.
Under these circumstances, and depending on the child's age and level of understanding, this is an issue to be addressed in relation to their self-awareness and self-advocacy. Whether the accommodation should be "required" in the face of the student's objection would need to be determined based on the situation.
Hello Mr. Cohen,
I am the parent of a child diagnosed with PDD-NOS and ADHD. He is in second grade with a history of behavioral issues. We just completed an IEE in which a comprehensive FBA was completed by an excellent professional.
I wanted the professional to continue working with the IEP team to ensure appropriate IEP development, implementation, and documentation of behavioral issues as well as training for the staff. The special education director indicated that her role was strictly to do the FBA as part of the IEE and that her role ends there.
For two years, this school has struggled with providing FAPE for my son. I want her to continue her work through the IEP. The school disagrees...now what?
Thank you, Catherine
Dear Catherine:
From your question, I presume that the school district paid for the independent evaluation. Unfortunately, an independent evaluation at district expense does not typically involve an ongoing commitment from the evaluator and there is nothing in the IDEA provision regarding independent evaluations (either at district expense or your expense) that requires the ongoing involvement of the evaluator. However, there is nothing legally to prevent you from asking for the evaluator to remain involved or to prevent the school from agreeing to it, or even having the district pay for it.
If the school is not willing to agree to pay for the outside expert's continued involvement, you have several options. One is to see if the evaluator is willing to be hired directly by you to provide some type of continuing consultation, though his/her ability to work within the school would be constrained by the school's willingness to cooperate.
Another option is to seek a due process hearing over the failure of the school to provide a free and appropriate education to your child generally and/or to adequately consider and implement the findings and recommendations of the evaluator.
Hopefully, if you requested a hearing, the school might conclude that it was made more sense to pay for the evaluator to remain involved than to have an expensive fight over whether they should be involved. However, you should consult a knowledgeable attorney to fully assess the situation.
We, along with our daughter’s teacher, requested a full education evaluation due to the fact that she is having difficulties in school. We have a meeting and I just received copies of her evaluations. The school failed to separate scores into PIQ vs. VIQ, providing only a full-scale IQ.
I noticed, reading the fine lines, that there was some significant scattering. The school has indicated that her scores are in the “superior” range (full scale IQ is 129), and have insinuated that her difficulties are due to her home life. On the WIAT, she scored 160 in written expression, and 110 in math. I see that as a big difference!
What can I do to ensure she is properly tested. I would like her specifically tested by a neuropsychologist for NVLD, of which she meets all diagnostic criteria. How can I convince the school to do this, as I cannot afford to have the evaluation done privately?
Cynthia
Dear Cynthia,
If the school is not willing to conduct a specialized evaluation based on the information that has already been provided to them, you have a number of options — none of them ideal. Your situation is also more difficult because you don’t have the resources to get an outside evaluation to prove that the school is wrong. However, you do have some options.
First, you can try to educate them about NVLD yourself by providing them with literature from experts in the field about the disorder. Second, you could file an administrative complaint with the State Department of Education or the U.S. Department of Education, Office for Civil Rights, complaining that the school is discriminating against your child by using improper criteria for evaluating the test data, using evaluators that may not be knowledgeable about the suspected disability, and failing to consider all areas of suspected disability.
Third, you could request an independent evaluation at district expense. The district could then either decide to pay for a private evaluation or would need to initiate a due process hearing to prove that their evaluation was appropriate. Finally, you could initiate a due process hearing yourself and request that the hearing officer order an outside evaluation based on the problems/concerns you have identified.
I have a 26-year-old son who I think may have ADHD. He was not diagnosed as a child, but in retrospect was exhibiting the symptoms of ADHD. He does not have insurance and we cannot afford to pay out-of-pocket for his evaluation or testing. Is there any resource available for this?
If your son is indigent and unable to work, there are a number of government programs that he might qualify for, including SSI and Medicaid. Depending on where you live, a number of public or not-for-profit hospitals or community mental health centers provide consultation and evaluation services for people that are suspected of having psychiatric disorders, including ADHD.
Unfortunately, given the current economic situation and huge cutbacks in funding for public programs like this, it may be difficult to find an agency that can be accommodating. As a starting point, you should identify the stage agency that provides mental health services and the agency that provides public aid and health care to determine what programs are available in your community and how to access them.
My daughter attends middle school in Ohio. Last year, I requested testing to see if she needed an IEP. It never happened. She has been struggling for some time now. She has asked many times for help from her teachers and they would angry and embarrass her so she stopped asking for help. It got to the point that I had a hard time getting her to go to school. This year, the school is retaining her in the seventh grade. I feel she is getting treated very unfairly and is being deprived of a education. Is there anything I can do?
Thank you so much.
Julie
Dear Julie,
If your child is not doing well in school and you suspect she has a disability, you have a right to request that she be evaluated for special education. You have apparently done this, though it is unclear whether you made the request in writing. If not, you should do so in writing immediately.
When the school receives a written request for evaluation for special education, it must either agree to conduct the evaluation, and obtain your informed consent for what the evaluation will include, or notify you of the refusal to conduct and evaluation and of your right to request an impartial due process hearing to challenge the refusal. It is unclear from your question whether you have had your child privately evaluated.
Sometimes where the parents are able to obtain a thorough outside evaluation, this can cause the school to reconsider its refusal to evaluate the child. Under some circumstances, some schools may even accept the private testing in lieu of some of the testing the school would have otherwise been required to conduct. If your child is being retained, there is clearly a significant problem with her academic progress.
Those problems may be due to a disability, though that is not necessarily the case. You can protest a retention decision to your school district's superintendent and board of education, but that does not address her need for special education. To address that problem, you may need to obtain outside testing, request a due process hearing, or file a complaint with the state education department.
In any event, you would be wise to seek advice from someone at your state's Parent Training and Information Center), and/or from a knowledgeable special education advocate or special education attorney.
Note from LD OnLine: For more information on what should happen in an evaluation, visit Evaluation: What Does it Mean for Your Child.
I have an eighth grader with ADHD. I am meeting with her teachers, which is something I've done for the last three years. I keep butting my head against the wall because I tell them she has ADHD and I am told she is responsible for doing her homework, studying for tests, and doing good in school. The testing showed my daughter doesn't qualify for special education classes. When I try to help my daughter study for a test or do regular homework assignments, she is not learning the way I did.
How can I make the teachers understand that my child learns differently and that I am willing to work with her so she won't struggle all year long like the last two years if they will help her, too? My daughter failed four subjects in the seventh grade, but the principal passed her to eighth because her grade point average was over a 70.
I let it happen against my better judgement, but told my daughter I would hold her back this year if she didn't pass all her classes. I know she will be totally lost going into high school in the ninth grade next year. Can you offer any advice?
Debbie
Dear Debbie,
Your question relates to your efforts to secure help for your daughter, who has been diagnosed with ADHD and struggles academically, but has been refused special education or Section 504 protections by your school district. Children with ADHD can qualify for special education under the category of "Other Health Impairment," if their ADHD causes them to have difficulty with paying attention or completing the many other tasks necessary for successful participation in class and completion of work.
The IDEA, the federal special education law, makes clear that schools are responsible for evaluating children that are suspected of having disabilities. They are also responsible for responding to requests for evaluation for services. They may either agree to conduct the evaluation, and, with written informed consent from the parent, complete appropriate multi-disciplinary assessments to determine if the child is eligible or they must notify the parents of their refusal to conduct the evaluation and the parents' right to request a due process hearing.
When the school conducts an evaluation to determine special education eligibility, they must evaluate not only the child's academic performance, but their developmental and functional performance as well. Thus, even if a child is receiving passing grades (which may not even be true for your child) and/or is showing that she is learning based on achievement test scores, she still may be determined eligible if the assessments show that she is having other difficulties in relation to her functioning at school that are due to her disability.
For a child with ADHD, this can include difficulty paying attention in class, completing work on time, having the appropriate materials, meeting deadlines, following classroom rules, such as not talking without being called on, etc. These are all things that may evidence functional or developmental problems, even if the child is passing or showing academic progress.
Similarly, under Section 504, a child may qualify for a Section 504 plan based on having ADHD if their ADHD substantially limits a major life activity, such as learning, and requires either special education, related services and/or accommodations. The U.S. Department of Education issued a policy letter in 1991 which made clear that children with ADHD may be entitled to accommodations under these circumstances, even if they do not meet the eligibility criteria for special education.
You may need to provide clinical reports documenting the ADHD and its impact on your child's functioning at school. In addition, you may want to monitor your child's behavior at school and when doing homework, to document the ways that the ADHD is disrupting their learning, behavior, social relations, etc. You may also need to consult with a knowledgeable special education advocate or attorney to assist you in getting the school to recognize your child's needs and provide either an IEP or Section 504 plan.
Help! I am trying to get my daughter tested for dyslexia and because she gets good grades, the school won't help me. Both my husband and I have it and I am really convinced she does, too. She is a bright girl; however, she does struggle with fine motor skills.
Holly
Dear Holly,
Your question asks whether your child is entitled to be tested for dyslexia, even though she is getting good grades. You indicate that she struggles with fine motor skills and that the parents have dyslexia. You always have the right to request an evaluation to determine if your child is eligible for special education. The school may either agree to conduct the evaluation or provide you written notice explaining why they are refusing the evaluation and that you have the right to request a hearing to challenge that refusal.
You also have the right to obtain a private evaluation at your own expense to determine if your child has a learning disability. If the private evaluation does result in your child being diagnosed, it should be shared with the school. They are required to consider the outside evaluation, although it does NOT automatically require them to either evaluate your daughter or to agree that she has a learning disability.
In addition, under the IDEA 2004 amendments, schools can use a process in regular education, called Response to Intervention, to provide more intensive support to students suspected of having a learning disability, to determine if they are able to make progress when given the special instruction. If they do progress, the schools will generally conclude that the student does not require special education. If, given the extra help, they do not make progress, the school is more likely to agree to conduct an evaluation.
The IDEA 2004 amendments also placed more emphasis on the child’s functional performance, so passing grades should not be the only determinant of whether your child warrants an evaluation or has a learning disability that qualifies for special education. In addition, you may also want to have your child evaluated by an occupational therapist to determine if she has fine motor problems that require intervention. This may be related to a learning disability, such as a visual processing or visual/motor disorder, but may be due to some other problem.
With increasing use of Response to Intervention as a mechanism for evaluating whether children might qualify for special education under the "specific learning disability" label, advocates assisting parents are finding more and more instances where parents are told that full, traditional special education evaluations are either not necessary or should wait until the RTI process is complete (at some unspecified time in the future).
While the federal regulations are now clear on the point that parents can request a full evaluation at any time during the RTI process -- and while we encourage families to do so in writing if they are not satisfied with waiting for RTI to work or not work, the comments on the regulations are also clear that Districts retain the right to turn down a request for an evaluation.
What is less clear is what criteria a District may use to turn down a formal request for a full special education evaluation. Do you have information about precedents, commentary or other sources that indicate what would be legitimate and non-legitimate reasons for a District to refuse to evaluate?
Your question seeks clarification as to the grounds that a school district may use to refuse a parent’s request for a special education evaluation, while the child is being provided RTI services. Unfortunately, there is little or no clarification or guidance for the grounds for the school to refuse an evaluation, but it should be based on the school’s perception that the child does not have a disability requiring special education.
It is critical that any regular education intervention service include a mechanism for gathering data on the child’s progress. The parents should seek that data, as well as seek to have a time frame for determining the period of time the intervention will be provided and the criteria for evaluating the child’s response within a prescribed period of time.
If the school does not agree to an evaluation and has failed to provide a time frame for making a decision about whether the child is responding to the regular education intensive intervention, the parent may need to request a due process hearing to challenge the school’s refusal of the evaluation. If the school has failed to gather appropriate data, it will have a difficult time defending the refusal of the evaluation. If there has been a proper data gathering procedure, the data may be useful in resolving whether the evaluation is indicated.
In any event, an open ended intervention process without an end point or criteria for assessing the child’s progress would by itself raise question about the basis for refusing the evaluation.