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).