Wednesday, April 8, 2009

When districts break the law...

I got a message from a friend that when thier district received a request for an outside AAC assessment, they denied it. Seems they think their assessment was (in the words of my friend) good enough for the kid. How frustrating, sad and infuriating. 

Whether or not you have a good relationship with your district, the sad truth is that districts do not always comply with IDEA, do violate the rights of children with special needs, and will wiggle with in the confines of the law to try to legally (but unethically) deny services that are difficult and expensive to provide. When this happens, and the problem cannot be resolved with simple, courteous communication with the district, there are processes and procedures in place that you should follow to protect your child.


The first thing to do is to make sure you understand your child's rights and the district's responsibilities. These can be found in the flyer your district gives you at every IEP and also online in the Parent's Rights documents (various translations are also online).

Quite likely you will read these and have more questions than you began with. That is good. Make a list. Then make a call: The Office of Procedural Safeguards (OPS) is there to help resolve problems in special education. Your tax dollars at work, and they work hard! OPS is a state agency that is little known but should get a customer service award. As a neutral party, they work with parents and districts; they really know their stuff and can often help resolve problems before they escalate. And when problems do escalate, they can help resolve them before parties go to due process. Which is good. When districts and parents go to court, everyone loses. Even if you win.

When you call OPS, explain that you are an unrepresented parent (that means you do not have an attorney for your child-- I'm assuming an attorney, if you have one, is answering your questions). Ask your questions, and they will help you to understand your child's rights and the district's responsibilities. If your district is violating the law (or in legal speak, "out of compliance") OPS will explain how to file a complaint, which will initiate technical assistance and monitoring of the district until the problem is resolved.

Here is what the law says about assessment rights under IDEA. (this is quoted from the Notice of Procedural Safeguards):

Nondiscriminatory Assessment How is my child assessed for special education services?
  • You have the right to have your child assessed in all areas of suspected disability. Materials and procedures used for assessment and placement must not be racially, culturally, or sexually discriminatory. 
  • Assessment materials must be provided and the test administered in your child’s native language or mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer. 
  • No single procedure can be the sole criterion for determining eligibility and developing FAPE for your child. (20 USC 1414[b][1]–[3], 1412[a][6][B]; 34 CFR 300.304; EC 56001[j] and 56320)

Independent Educational Assessments May my child be tested independently at the district’s expense?
  • If you disagree with the results of the assessment conducted by the school district, you have the right to ask for and obtain an independent educational assessment for your child from a person qualified to conduct the assessment at public expense. 
  • The parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
  • The school district must respond to your request for an independent educational assessment and provide you information about where to obtain an independent educational assessment. 
  • If the school district believes that the district’s assessment is appropriate and disagrees that an independent assessment is necessary, the school district must request a due process hearing to prove that its assessment was appropriate. If the district prevails, you still have the 
  • right to an independent assessment but not at public expense. The IEP team must consider independent assessments. 
  • District assessment procedures allow in-class observation of students. If the school district observes your child in his or her classroom during an assessment, or if the school district would have been allowed to observe your child, an individual conducting an independent educational assessment must also be allowed to observe your child in the classroom. 
  • If the school district proposes a new school setting for your child and an independent educational assessment is being conducted, the independent assessor must be allowed to first observe the proposed new setting. (20 USC 1415[b][1] and [d][2][A]; 34 CFR 300.502; EC 56329[b] and [c])
Now, about the problem of refused assessment. When a district refuses assessment request, they must give Prior Written Notice within fifteen days. This is from the Notice of Procedural Safeguards from OPS: 

Prior Written Notice When is a notice needed?

  • This notice must be given when the school district proposes or refuses to initiate a change in the identification, assessment, or educational placement of your child with special needs or the provision of a free appropriate public education. (20 USC 1415[b][3] and (4), 1415[c][1], 1414[b][1]; 34 CFR 300.503; EC 56329 and 56506[a])

  • The school district must inform you about proposed evaluations of your child in a written notice or an assessment plan within fifteen (15) days of your written request for evaluation. The notice must be understandable and in your native language or other mode of communication, unless it is clearly not feasible to do so. (34 CFR 300.304; EC 56321)

What will the notice tell me?
The Prior Written Notice must include the following:

1. A description of the actions proposed or refused by the school district
2. An explanation of why the action was proposed or refused
3. A description of each assessment procedure, record, or report the agency used as a basis for the action proposed or refused
4. A statement that parents of a child with a disability have protection under the procedural safeguards
5. Sources for parents to contact to obtain assistance in understanding the provisions of this part
6. A description of other options that the IEP team considered and the reasons those options were rejected; and
7. A description of any other factors relevant to the action proposed or refused. (20 USC 1415[b][3] and [4], 1415[c][1], 1414[b][1]; 34 CFR 300.503)