It is not uncommon to encounter parents who for years have been requesting a special education evaluation for their child to no avail or who have been raising concerns with teachers and school officials that should have triggered the Child Find duty but did not result in referral for an evaluation. In many instances, this issue can be resolved simply by writing a formal letter requesting an initial special education evaluation and sending it to appropriate school and LEA officials.1  The request can be sent to a school-level special education coordinator or principal, but it is also advisable to copy or address the letter to the appropriate official responsible for special education evaluations at the LEA level.2  Because an LEA is only required to respond within a reasonable time of its decision to initiate or refuse to initiate the evaluation process,3  the attorney should be prepared to follow up as needed until the LEA provides a response.

The initial evaluation request letter should include all information supporting the existence of any suspected disabilities, including a narrative of the academic, functional, and behavioral difficulties the student is having or has had and relevant medical or mental health information. Relevant medical or mental health records, reports, and evaluations should also be attached if the parent is willing to share them. If no outside evaluations have been conducted for the student, the attorney should consider asking the parent to obtain a private evaluation in any area that might be helpful to the eligibility determination. For example, the existence of a psychological evaluation diagnosing a student with ADHD, depression, or another mental health condition could facilitate the finding of eligibility under OHI or ED. Similarly, the recommendations in a private speech or occupational therapy evaluation can be helpful both for purposes of eligibility determination during the evaluation process and later on during the IEP development phase. While the LEA is not required to agree with these outside evaluations or accept their recommendations, the evaluation team must consider the information in private evaluations provided by the parent.4  Furthermore, these kinds of private evaluations are often available at no or minimal out-of-pocket expense to the parent through Medicaid or private insurance. The attorney should consider asking the parent to obtain these types of private evaluations as early in the representation as possible because scheduling the necessary appointments, completing the evaluations, and receiving the reports can take some time.

The suspected or potential exceptionalities that should be identified in the request letter can be determined by reviewing the definition of each exceptionality listed in Louisiana Bulletin 1508 and comparing the legal criteria for each category to the information obtained from the parent interview and the available student records. The attorney should err on the side of listing more rather than fewer potential exceptionalities to ensure a comprehensive evaluation. It may also be advisable to specify the areas of assessment or types of assessment tools that should be part of the evaluation. While almost every LEA conducts psychometric testing to assess for cognitive capacity and academic performance, other tools used to assess in more specialized areas such as autism, attention deficit and hyperactivity, or adaptive behavior may not be included in an initial evaluation unless specifically requested.

The LEA should not deny the request for an initial special education evaluation without first holding and inviting the parent to attend an SBLC or SAT meeting to discuss whether the child needs an evaluation due to a suspected disability.5  If the request is denied without a parent having attended such a meeting, the attorney should immediately request the convening of an SBLC meeting so that the parent can exercise the right to participate in meetings where decisions are made regarding the evaluation and identification of the parent’s child. Attendance at an SBLC meeting is an opportunity to make the case in person for an evaluation and to provide any additional information supporting the existence of a suspected disability. The SBLC is also another opportunity to shape the assessment plan and ensure that the LEA will assess the student in all areas of educational need for all suspected exceptionalities using a variety of appropriate assessment tools. If advocacy at the SBLC meeting is not successful, the only alternatives are to accept the decision or to resort to some type of formal dispute resolution.6

Sometimes, however, the LEA will not deny the request for evaluation outright, but instead will seek to delay the initiation of an evaluation indefinitely by referring the student for formal, tiered interventions known as Response to Intervention (“RTI”). The LEA may characterize the use of formal interventions as a necessary step prior to the referral of a student for a special education evaluation. If this is the case, the attorney should point out that the federal Office of Special Education Programs (“OSEP”) has unequivocally stated that “RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation.”7  Furthermore, the IDEA clearly contemplates the use of RTI and other types of interventions as a part of the special education evaluation process rather than as a precondition for evaluation.8  If the interventions begin shortly after obtaining parental consent for the evaluation, there should not be any problem completing them within the normal timeline for evaluations. Possessing an in-depth understanding of evaluation procedures and eligibility criteria can be crucial to overcoming these types of delay tactics and denials so that the student obtains a timely and comprehensive initial evaluation.

• 1A template letter for requesting an initial special education evaluation is provided in Section 9.
• 2 The title of the appropriate official varies, but the position is often labeled as the head or coordinator of Pupil Appraisal, Child Find, Exceptional Student Services, Special Populations, or Special Education.
• 334 C.F.R. § 300.503(a); La. Bulletin 1706 § 504(A).
• 4See 34 C.F.R. § 300.503(C)(1); La. Bulletin 1706 § 503(c)(1); La. Bulletin 1508 § 507(A)(1) (requiring the LEA to use a variety of assessment tools and strategies for evaluations, “including information provided by the parent that may assist in determining whether the student has an exceptionality”).
• 5La. Bulletin 1508 § 109(A)(1); 34 C.F.R. § 300.503(c)(1).
• 6See Section 6 on formal dispute resolution under the IDEA.
• 7See OSEP Memo 11-07, A Response to Intervention (RTI) Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the Individuals with Disabilities Education Act (IDEA) (Jan. 21, 2011).
• 820 U.S.C. § 1414(b)(6)(B) (“In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures.”).

Once the LEA has agreed to conduct a special education evaluation, the attorney should remain vigilant to ensure that the process moves forward in a timely manner and follows all required procedures. As the timeline for evaluations begins when the LEA obtains parental consent, the attorney should take the steps necessary to ensure that the parental consent form is provided, signed, and submitted promptly.1

Along with or as part of the parental consent form, a parent should also receive a list of all of the areas of assessment that will be included in the evaluation. It is important to review this list to ensure that the student will be assessed in all areas of concern and to request that appropriate areas of assessment be added if any have been left out. If there is any concern, it may be advisable to ask the LEA for an assessment plan that includes a list of the particular assessment tools that will be used in each area of evaluation. Some assessment tools are designed or normed for students in a particular age range or developmental level and others may be more or less appropriate for students who are culturally or linguistically diverse.2  In order to understand whether the assessments being used are appropriate and whether additional areas of assessment should be included in the evaluation, it is important for the attorney to research both the legal criteria for eligibility in each potential category of exceptionality and the instruments commonly used to assess for areas of need related to those exceptionalities.3  Although resolving concerns over the areas of assessment and assessment tools to be used may delay the start of the evaluation, it may be worth taking the time to address those issues on the front end to avoid the need to extend evaluation timelines for additional assessments towards the end of the evaluation process. Ensuring a comprehensive evaluation is important not only because failure to assess thoroughly could negatively affect the eligibility determination, but also because the information and recommendations contained in the evaluation will be used to drive the development of an appropriate IEP by providing an accurate picture of the student’s needs, strengths, and learning style.

After the evaluation timeline has begun, an attorney should remain in contact with the client to ensure the evaluation remains on track to be completed within 60 business days.4  Several weeks prior to the deadline for the completion of the evaluation, the attorney should reach out to schedule the dissemination/eligibility determination meeting and to request that a draft of the initial evaluation report be provided as far in advance of the meeting as possible so that the attorney can help the parent prepare to participate fully in the meeting. Upon receiving the draft evaluation report, the attorney should review it carefully to understand the recommendations, findings, and underlying data it contains.5  Although the final eligibility determination is not made until the conclusion of the dissemination meeting, the LEA’s position can often be divined from the draft report. If it appears the student will not be found eligible from the draft report, the attorney should be fully prepared to argue that the evaluation data, previous school records, outside evaluations and medical records, and information provided by parents and teachers support a finding that the student qualifies for special education under a particular exceptionality.

It is also possible for the evaluation team to find a student eligible for special education, but under an exceptionality with which the parent disagrees. For example, the LEA may wish to find a student eligible under the exceptionality of Emotional Disturbance (“ED”) while the parent might feel that the exceptionality of Other Health Impairment (“OHI”) is more appropriate. Although the exceptionality should not affect the IEP services and supports since those should be based on individual need, a parent might wish to avoid a label such as ED that carries a stigma. In such instances, it is once again important for the attorney to develop a mastery of both the legal criteria for each exceptionality, some of which are similar to one another, and the data, records, and history of the child.

If despite this advocacy the evaluation team still concludes that the student is not eligible for special education or is eligible under an exceptionality with which the parent disagrees, the attorney should consider requesting an IEE at public cost and resorting to formal dispute resolution to challenge the eligibility determination. 

• 1For a sample Parental Consent for Initial Evaluation form developed by LDE, see La. Dep’t of Educ., Parental Consent for Initial Evaluation (2008).
• 2See Jane Burnette, ERIC Development Team, ED449637 2000-12-00, Assessment of Culturally and Linguistically Diverse Students for Special Education Eligibility (2000).
• 3For a list of common tests used to assess in different areas of need as part of a special education evaluation, see Arc Guide to Special Education Evaluation Tools, The Arc Minn.
• 4La. Bulletin 1508 § 511.
• 5For an overview of how to understand the results of psychometric assessments and their applicability to eligibility criteria, see All. For Children’s Rts., Special Education Eligibility Checklist (2018).

In some cases, advocates may encounter special education students whose triennial reevaluations have been waived multiple times. In others, the “reevaluation” may consist of a one-page “check box” form that merely confirms that the student remains eligible for special education services after a review of records. Under both circumstances, obtaining a comprehensive reevaluation as soon as possible can provide valuable information for shaping appropriate IEP goals, services, and modifications. As with an initial evaluation request, a request for a reevaluation should be sent as a letter to the appropriate school official(s) via email along with any supporting documentation.1  The request for a reevaluation can also be combined with a request to add a particular IEP service, such as an assistive technology device or additional speech therapy minutes. As with the initial evaluation process, advocacy may be needed to ensure that the reevaluation is completed in a thorough and timely manner. If the LEA resists conducting a thorough reevaluation, the attorney should consider requesting an IEE at public cost and engaging in formal dispute resolution if needed to obtain the benefits of a proper reevaluation.

• 1A template letter for requesting a special education reevaluation is provided in Section 9.

Requesting and obtaining an Independent Educational Evaluation (“IEE”) at public cost can be one of the most valuable tools for special education advocacy because of both the information and leverage it can provide. To request an IEE at public cost, an attorney should send a letter by email to the principal or head of special education for the school of attendance if the LEA is not already being represented by counsel in the matter.1  When a parent requests an IEE at public cost, an LEA must either provide it or request a due process hearing to prove the LEA’s initial evaluation was appropriate, both of which can be costly and undesirable alternatives for the LEA.2  As a result, IEEs can provide valuable leverage in negotiations when the LEA wants to avoid the costs of the IEE or the expenditure of time and resources involved in due process proceedings.

If the LEA refuses the request for an IEE at public cost, the attorney should prepare to refute the LEA’s contention that its own evaluation is appropriate at a due process hearing. Alternatively, the LEA might agree to the IEE at public cost but then set up roadblocks that effectively prevent the parent from obtaining the IEE. For example, the LEA may attempt to cap the cost of an IEE at a level well below the market price or require that the evaluators be selected from a list of providers of questionable independence. The only restrictions an LEA may only impose concern the location of the evaluation and the qualifications of the examiner; these restrictions must be the same as those used by the LEA for initial evaluations.3

LEAs sometimes attempt to provide the IEE at public cost by offering to reimburse parents for the price of the IEE, which can cost thousands of dollars. Clients who are not wealthy may be unable to pay up front and then wait for reimbursement. While the regulations do not specify this level of logistics, once an LEA agrees to the request for an IEE it must “ensure that an independent educational evaluation is provided at public expense.”4  Attorneys who encounters an LEA using these kinds of tactics should use their advocacy skills to negotiate a solution and force the LEA to meet its obligations under the law.

• 1A template letter for requesting an IEE is provided in Section 9.
• 2See 34 C.F.R. 300.502(b)(2); La. Bulletin 1706 § 503(B)(2).
• 3La. Bulletin 1706 § 503(E).
• 4Id. § 503(B)(2)(b); 34 C.F.R. § 300.502(b)(2)(ii).

Any dispute related to the provision of FAPE can in theory be resolved through effective advocacy during the IEP development process, which largely takes place during IEP team meetings. Because the IEP governs all aspects of a student’s education,1  the IEP team has broad authority to modify a student’s educational program in order to provide FAPE. With some clients, an annual IEP meeting or an IEP amendment meeting to discuss some specific aspect of the IEP may already be scheduled when the attorney becomes engaged in the representation. For others, the attorney may need to request an IEP meeting proactively to discuss adding, removing, or changing a specific aspect of the IEP or to overhaul the plan entirely. In all of these scenarios, intensive preparation and the use of well-honed negotiation skills are key to engaging in creative and successful IEP advocacy.

• 1See 34 C.F.R. § 300.320; La. Bulletin 1706 § 320.

The first step is an in-depth review of all available educational, medical, and mental health records for the student. Looking back at IEPs for the past several years and evaluations going all the way back to the initial evaluation can provide valuable insight into the areas in which the student is struggling to make progress and the kind of additional support the student might need to succeed at school. It can also reveal patterns as to what has and hasn’t worked well for the student in the past. The attorney should catalogue the records in a manner that makes internal sense and create charts or other visual and organizational aids that will allow the attorney to access documents, remember key facts, and easily find information that will support the parent’s position or refute the LEA’s contentions during a fast-paced IEP meeting.  

After reviewing the records, the attorney should meet again with the client to discuss specific aspects of the IEP that could be modified to better meet the student’s needs. Armed with a deeper understanding of the student’s educational history and records, the attorney will be in a better position than during the initial interview to engage in client-centered counseling about strategies and solutions that could produce outcomes consistent with the client’s goals. Many parents already have an idea of specific changes they would like to see to their child’s educational program. Frequently, the main goal of representation will be to change the student’s educational placement to a particular classroom or to add or increase a related service like speech therapy or occupational therapy. Other times it might be to add a particular support or accommodation such as the services of a one-on-one paraprofessional or the use of assistive technology like an Augmentative and Alternative Communication (“AAC”) device. For all of these types of changes, an attorney must be able to point to supporting data and other information to help persuade the rest of the IEP team that the particular support or service being requested is needed to provide FAPE.

In most cases, however, the IEP can be improved beyond the more easily identified discrete changes that tend to be the initial focus of the representation. After all, the student is a complex person with many needs and strengths, and the attorney should help the parent to consider how each of the components of an IEP can be creatively shaped to meet the student’s individual needs. For example, a parent may not have known it was possible to request a parental communication plan as an accommodation.1   Another common area of deficiency in many IEPs is the lack of appropriate, measurable goals and learning objectives in each area of need. Some students may keep the same goals and objectives over several years, indicating a lack of progress. Other students may have goals that change annually to reflect the grade-level standards for the student’s new grade, but the data monitoring relating to the goals or short-term objectives show that the student is not making progress. For other students the goals might be so vague and poorly written that data monitoring is impossible and the student’s progress cannot be tracked. A number of online resources exist that can help an attorney learn how to assist in the development of “S.M.A.R.T.” goals that are specific, measurable, attainable, results-oriented, and time-bound.2

• 1In a parental communication plan, a teacher or paraprofessional provides detailed weekly updates on a student’s struggles or progress with particular goals, skills, or materials to allow the parent to better support the student’s educational needs at home.
• 2A number of online resources exist to help parents, advocates, and educators learn how to write more effective goals using the S.M.A.R.T. model. See Sue Watson, How to Write IEP Goals, ThoughtCo.; Tips for Writing and Understanding Smart IEP Goals, NY2; Setting Smart IEP Goals, TACA; Goals and Objectives, Impact of Special Needs.

When one is ready to request an IEP meeting, one can do so by sending a letter via email to the principal or special education coordinator at the school the student attends.1  The letter can broadly request a meeting to review, revise, and discuss the IEP, or it can request changes to particular components of the IEP. A benefit of including specific requests regarding modifications to the IEP is that doing so triggers the parent’s right to receive prior written notice of any refusals or counter-proposals.

Another consideration is whether to invite other individuals to participate as members of the IEP team. Having a lay advocate, social worker, counselor, or other outside provider with specialized training or who has worked with the student and family for a long time can provide valuable insight and serve as an important ally during the IEP meeting. The attorney should also consider requesting that specific employees of the LEA be present if their presence would be helpful. For example, having a school psychologist or autism specialist from the district’s central office present if the IEP meeting will involve the development or review of a Behavior Intervention Plan (“BIP”) can lead to better results than relying on a teacher or school-level administrator to lead the drafting of the BIP. If someone whose presence would be helpful is unable to attend in person or for the entire meeting, the attorney should attempt to arrange for remote attendance via phone or videoconference or attendance for only part of the meeting. Of course, the attorney should also request an interpreter for the parent if needed.

Whether the student should be present for all or part of the IEP meeting is another factor to consider. The parent has the right to make the decision regarding the student’s presence if the student is under the age of majority, but it is generally advisable to have an older student present for at least part of the meeting to provide input and become invested in the educational program being designed. For example, it would be difficult to create a transition services plan without the student present since the plan must be based on the student’s preferences and interests.2  If the parent or student are concerned about the student’s ability to sit through the meeting because of the sensitive nature of the topics being discussed, boredom, or some other reason, the attorney should consider working out a signal so that the student can quietly be excused.

Prior to the IEP meeting, the attorney should work with the parent to draft a parental concern statement that thoroughly and accurately reflects and prioritizes the parent’s concerns with the student’s educational program and describes the desired changes to the IEP. The parental concern statement is the only part of the IEP that is meant to express the will of the parent alone rather than that of the IEP team as a whole. The statement can be read out loud or provided in hard or electronic copy so that it can be added verbatim to the IEP. Because it appears on the first page of the IEP form and so is usually discussed early, a thoughtful parental concern statement can set the tone of the meeting, although nothing expressed in the statement is binding on the LEA.

• 1A template letter requesting an IEP meeting is provided in Section 9.
• 234 C.F.R. § 300.43(a)(2); La. Bulletin 1706 § 905 (defining Transition Services).

At the IEP meeting, the attorney should endeavor to work collaboratively with the school-based members of the IEP team and keep the focus on the student’s needs.1  In many cases, emotions may run high due to a long history of acrimonious interactions between the parent and the school that preceded the attorney’s involvement. While an attorney must firmly defend the client’s interests, modeling professionalism and directing the focus of the conversation towards finding forward-looking solutions to the issues rather than assigning blame for past failures can be critical to obtaining the desired outcome. Additionally, the attorney and parent should avoid talking about the student’s “best interests” or what is “best” for the student because the legal basis for evaluating special education is whether a student’s program provides an appropriate education.

Although every member of the IEP team, including and especially the parent, has a voice and is able to provide input at IEP meetings, the IEP team is not a democracy. Ideally, the IEP team will arrive at decisions related to the IEP through consensus, but in Louisiana it is the LEA’s Officially Designated Representative (“ODR”) who ultimately determines what goes into an IEP. While a parent’s consent in the form of a signature on the consent page on the initial IEP is needed in order for special education services to begin, no such consent is needed for subsequent annual IEPs.2  As a result, a parent’s refusal to sign an IEP has no legal effect for the annual IEP, which becomes the official IEP when submitted through the state’s Special Education Reporting (“SER”) System.3

Despite the concentration of power being decidedly one-sided when it comes to IEP teams, the mere presence of an attorney can be helpful to the chances of reaching agreement and attaining desired outcomes for the parent at an IEP meeting. School officials understand that the involvement of an attorney increases the chances of having to deal with costly and time-consuming formal dispute resolution if no agreement is reached. Even more importantly, the involvement of an attorney often leads to the involvement of school officials with greater training and expertise and results in a more formal IEP meeting where more care is taken to consider parent input. A parent who is used to IEP meetings being brief encounters with a special education teacher and possibly one other school administrator at which the parent’s concerns are quickly dismissed may marvel that the first IEP meeting with an attorney may last for several hours, have in attendance nearly a dozen school-level and central-office level officials, and involve everyone at the table taking time to listen to and understand the parent’s concerns. Providing a platform for a parent’s voice to be heard is sometimes all that is needed for effective IEP advocacy.

• 1For tips on how to advocate effectively at IEP meetings, see Erin Han, et al., Special Education Advocacy at School Meetings, Am. Bar Ass’n (Jan. 9, 2012); Advocacy Tips for IEP Meetings, Disability Rts. S.C.; 17 Special Education Advocacy Tips, Disability Rts. Cal. (June 1, 2020).
• 2See La. Dep’t of Educ., Individualized Education Program Form 14.
• 3See La. Dep’t of Educ., Special Education Reporting IEP Forms User Guide (Feb. 2021).