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Tuesday, July 14, 2015

What Happens When the School Terminates My Child’s Special Education Services?

From The Friendship Circle Blog

By Michael Dorfman, Esq.
May 12, 2015

Being told that your child no longer qualifies for some or all the current special education services that they are receiving elicits mixed emotions from parents. Sometimes the news from the school is greeted with excitement that your child has reached a level of achievement and independence that no longer necessitates the need for these services.

The other reaction when delivered the news of termination of some or all services is fear, mortification and the belief that the decision by the school was subjective, and not based on a comprehensive evaluation process.

This article will focus on the protections built into the law and the steps parents need to follow when they believe special education services should not have been limited or terminated.


Re-evaluations

A school district shall ensure that a re-evaluation of each “child with a disability” (This phrase is how IDEA defines who is entitled to special education and related services) is conducted if the school district determines that the educational or related services needs of the child, including improved academic achievement and functional performance, warrant a re-evaluation.
20 U.S.C. § 1414 (a)(2)(A)(i) 

A child’s parent may also request a reevaluation. 20 U.S.C. § 1414 (a)(2)(A)(ii) A re-evaluation shall not occur more frequently than once a year, unless both the parent and the school district agree otherwise, and at least every 3 years, unless the parent and school district agree that a reevaluation is necessary.
20 U.S.C. § 1414 (a)(2)(B)(i)&(ii)

It is at the re-evaluation meeting where you as the parent would be informed that your child no longer qualifies for special education or certain or all related services.

Procedures

The school district will provide notice to the parent that describes any evaluation procedures the school district proposes to conduct. 20 U.S.C. § 1414 (b)(1)

In conducting the evaluation the school district shall:
  • Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent that may assist in determining whether the child is a child with a disability; and determining the content of the child’s IEP, included information related to enabling the child to be involved in and progress in the general education curriculum. 20 U.S.C. 1414 (b)(2)(A)(i)&(ii)
  • Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child 20 U.S.C. 1414 (b)(2)(B); and,
  • Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. 1414 (b)(2)(C)

The school district must also ensure that the assessments and other evaluation materials used to assess the child were:
  • Selected and administered so as not to be discriminatory on a racial or cultural basis;
  • Provided and administered in the form and language most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally;
  • Used for the purposes for which the assessments are valid and reliable;
  • Administered by trained and knowledgeable personnel; and
  • Administered in accordance with any instructions provided by the producer of such assessments

The child must be assessed in all areas of suspected disability.

Upon completion of the administration of the assessments and other evaluation measures, the determination of whether the child still qualifies as a child with a disability, and what educational needs the child has, shall be made by a team of qualified professionals and the parent of the child.

In making a determination as to whether the child with a disability is still eligible, a child shall not be determined to be a child with a disability if the determinant factor for such determination is: lack of appropriate instruction in reading; lack of instruction in math; or limited English proficiency.

The school district shall also not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. 20 U.S.C. § 1414 (b)(5)&(6)

Reviewing Existing Evaluation Data

As part of any reevaluation, the IEP Team and other qualified professionals, as appropriate, shall review existing evaluation data on the child, including:
  • Evaluations and information provided by the parents of the child.
  • Current classroom-based, local, or State assessments, and classroom-based observations.
  • Observations by teachers and related services providers.

In addition to reviews and input from the child’s parents, (the Team must) identify what additional data, if any, are needed to determine whether whether the child needs special education and related services, or in the case of a re-evaluation of a child, whether the child continues to need special education and related services; and whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum. 20 U.S.C. § 1414 (b)(6)(c)

Requesting An IEE

If you are in disagreement with the school district’s evaluation, you can request an Independent Educational Evaluation (“IEE”) at the school district’s expense. This is a right of the parent under IDEA. You may also find an evaluator at your own expense, because there is a lot riding on the denial of services to your child.

You are also entitled to all of your child’s test results and a complete copy of the educational records and evaluations.

Due Process

If you disagree with the reevaluation decision, due process is the last resort. There are articles on the due process procedures on the blog site that explain the process in more depth.

Conclusion

Request to review all of the assessments performed and all the evaluations procedures utilized by the school district in terminating or cutting back special education and/or related services. Make sure the law was followed, and that the changes were for educational purposes and not economically based.

Consult an attorney or an advocate who specializes in this area to help you review the findings to determine if they are on the level, and the process was undertaken fairly and legally.

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Michael R. Dorfman is an attorney and partner at Nykanen Dorfman, PLLC in Farmington Hills, Michigan. In his special education law practice, Michael represents students and their families when there is a conflict with the school district or when an appropriate education is not being provided. View all 14 of Michael Dorfman's posts.


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