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.”).