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Early Identification

The following are past questions and answers from Matt Cohen on this topic.

Can a school legally change any part of an IEP without parental consent?

We had an IEP for a 6-year-old child who had not yet attended kindergarten. The child was found eligible for special education services, and we held an IEP meeting. During the meeting, it was determined by all professionals on the team that the child should be enrolled in kindergarten with an aid, despite his age. The parents were not given an IEP report but were told to come in to school the next day to enroll the child in kindergarten. Parents were given an IEP the next day, but it did not mention grade placement. Subsequently, the parents were told that the child could not be enrolled in kindergarten because he was 6 years old and had to enroll in first grade, regardless of his "special circumstances".

I'm wondering… is there a way the school can change the determination of the IEP without the parents, without breaking the law? And is there any precedent in past cases of a 6 year old being placed in kindergarten rather than 1st grade?

First, generally, the issue of promotion and grade level placement is not automatically viewed as an IEP issue by most school districts. You should check your state's laws to see if it addresses minimum/maximum ages for participation in kindergarten and enrollment in first grade. Sometimes, this issue is addressed in district policy, rather than state law. If this is the case, the IEP more clearly supercedes any limiting policy. In your situation, the problem is further complicated because the staff apparently supported placement in kindergarten, but the person writing the IEP document didn't write that in it.

Although it is legally permissible to change any IEP outside of the IEP meeting, this can only be done in writing and with mutual consent of the parents and the school staff. However, because the grade level issue was not written into the IEP, the school administration will likely take the position that it is an administrative issue and wasn't even addressed in the IEP. It would be helpful for you if the participating staff is willing to confirm that they agreed that the child should be in kindergarten, but it may be difficult to get that documented in writing. In all likelihood, the parents will need knowledgeable legal help to assess the situation and determine their legal position. In either event, getting documentation of what the team actually agreed to, versus what was written subsequently, would be very important.

My son has been struggling for three years and was held back but does not qualify for services. How can I fight this?

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.

How can I prevent my five year old from being removed from special education services that began at age three?

My son was born with a brain disorder, where many areas of the brain did not develop. Therefore, he has had global developmental delays. He was classified at age three and has made great progress and achievements ever since then. He is now turning five and the school wants to declassify him and send him to Kindergarten. I agree he could probably handle a Kindergarten curriculum, however I don't want him declassified. I don't feel he is ready to be set out on his own.

The disorder he has predisposes him to further developmental problem areas. I was instructed by his neurologist that as he reaches new milestones, he will probably need therapy, some areas more intensively than others. Is there anything I can do legally before this becomes final? I need to ensure his education will not become impacted. I feel strongly that this decision is being prematurely made. I don't trust the school to re-evaluate him later if he runs in to problems in the future. I know how the system works. It could take years of regression before they make a decision. Help! I'm ready to fight for his rights. I would love to hear some advice.

You seek information about what rights you have in the fact of your school district’s apparent desire to remove your child from special education at age 5, based on the progress he has made in Early Childhood, despite your concerns about his continuing developmental needs. At the outset, the IEP team may decide that a child is not eligible for special education, but that decision should be preceded by an evaluation to assess whether the child still has a disability which adversely affects his educational performance and requires special education.

Assuming the district decides to declassify your child, your legal remedy is to immediately request a due process hearing to object to the school’s decision. While the due process proceeding is pending, the child must continue to be provided with special education services. Although schools are not required to provide special education based on the potential for problems in the future – as the prior answer references, the school must assess the child’s needs, based not only on their academic progress, but their developmental and functional progress as well. Thus, even given your child’s progress, there may well still be areas of school functioning where your child still demonstrates delays that require continuing intervention.