Securing an IEP for Your Child
When does a school have a duty to do an initial evaluation to determine if a child is in need of special education services? Is your school district “dragging their feet” and not conducting an educational evaluation for your child?
All school districts have a child find duty under the Individuals with Disabilities Act (IDEA). The IDEA states that a state’s education agency, other state agencies, or local educational agency shall conduct a full and individual initial evaluation before providing special education and related services. This mandate applies to all children in a school district from birth through age 21.
Often we find that school districts will “discuss” with parents a child’s struggles, but there seems to be a lag in getting an evaluation done to determine a child’s potential need for services. If no evaluation is done, no services can be provided, so what is a parent to do to get the evaluation done? How can the school take so long to complete an evaluation when a child is struggling?
Minnesota Statute 3525.2550 states that a school must conduct an evaluation within a “reasonable time” not to exceed 30 school days from the date the district receives parental permission to conduct an initial evaluation. The IDEA section 1414 (c)(i) states that a district has 60 days, after receiving parental consent for an evaluation to determine if a child needs services.
How can these provisions work together? First, it is important to note the 60-day deadline under the IDEA is not limited to “school days”. Therefore, the school district has a duty to conduct evaluations even during the summer if the 60 days will end during the summer. Second, the Minnesota statutory 30 school days deadline applies when school is in session and shortens the 60-day federal rule. Collectively, the school has until the end of whichever deadline comes first to complete an initial evaluation after parental consent for an evaluation is provided.
So what is parental consent?
Parental consent can be as simple as a written letter to the school saying, “I think my child has need for services and I give you permission to evaluate my child.” If you simply call the school, chat with a teacher, etc. the school will argue that the deadline did not start because they don’t have written evaluation plan signed by a parent. yes, a written plan is better than blanket permission to evaluate a child, but it is not required under the law to start the clock running on the 60 and 30-day deadlines. You do not have to wait for the school district to develop a written plan, present it to you, and then get your approval. Send your approval right away! Some school districts seem to drag their feet and the time they have to evaluate a child by taking a long time to develop a plan for evaluation and failing to see parental consent on their plan. This is not acceptable.
In a recent Minnesota case (M.J.C. ex rel. Martin v. Special Sch. Dist. No.1, Minneapolis Pub. Sch., No. CIV. 10-4861 JRTTNL, 2012 WL1538339, at *8) the school district argued that it made a good faith effort to evaluate a child that was obstructed by the parent. However, the court held that the district failed to produce an evaluation plan in writing and that failure contributed to the child not being evaluated, thus causing the child find violation.