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When to File a Special Education Complaint

When to submit a state special education complaint against East Grand Rapids Public SchoolsEarlier this week, there was a post about the State’s new site for special education complaints.

Unfortunately, it takes a while to get up to speed on special education law, and many parents simply aren’t aware of when violations occur or what to do about them when they occur. Too many parents spend days, weeks, months in discussions and arguments with district staff regarding what the district should be doing or is required to do. While you certainly shouldn’t give up on these discussions and arguments, you should also strongly consider filing either a State Complaint or Due Process Complaint if you find the district is not compliant with the regulations and rules. This may help speed compliance and get others involved.

Even if a district ultimately complies with what is required, you should still likely file a State Complaint to investigate and document non-compliance. A State Complaint helps inform the State and the ISD of problems and helps them monitor more closely the actions of the district. Filing a State Complaint will also help educate other parents when they review complaints on Michigan’s new website for special education complaints.

Below is a short list of issues and the respective laws and rules related to them. Remember, this is just a small portion of the potential issues you might encounter, and the facts and circumstances of each situation is unique. Please post a comment if there are other potential issues you think we should add to the list.

If the district asks you to rescind your request for an evaluation and instead offers you Section 504 accommodations to help your child

34 CFR § 300.301(b) states either a parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability. You may request an evaluation of your child, and the district may not prevent you from doing so.

34 CFR § 300.111 of the IDEA the district has a responsibility to identify, locate and evaluate students with suspected disabilities. While Section 504 also pertains to disabilities, its primary focus is discrimination, including discrimination against persons with disabilities. Depending on the nature of your child’s disability, if the district offers you 504 accommodations but does initiate a referral for a special education evaluation or asks you to rescind your request for a special education evaluation, the district may well have violated its affirmative duty under Child Find 34 CFR § 300.111.

If, when requesting an evaluation, the district tells you your child won’t qualify for special education

34 CFR § 300.301(b) states either a parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability. You may request an evaluation of your child, and the district may not prevent you from doing so.

If you have reason to believe your child should be evaluated, the district should not be making judgments as to whether your child will qualify for special education without first performing an evaluation. If you believe your child should be evaluated, you should not back down. The district may refuse to perform an evaluation, but make them do so in writing. 34 CFR § 300.503(a)(2) states written notice must be given to the parents of a child with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation, or educational placement of the child.

If your child’s teacher recommends to you that your child should probably be evaluated but does make a referral to have your child evaluated by the district

The district has a responsibility to identify, locate and evaluate students with suspected disabilities consistent with 34 CFR § 300.111 of the Individuals with Disabilities Education act (IDEA). Regardless of a parent’s position on whether a referral for special education evaluation is proper, the district has an affirmative obligation to initiate a referral if a student’s behavior or performance warrants it. If a parent does not want an evaluation, the parent may withhold consent. However, if a district refers a child for evaluation and the parent withholds consent, the district would have satisfied its Child Find responsibility.

If the district doesn’t respond timely to your request for an independent evaluation

R 340.1723c(2) of the Michigan Administrative Rules for Special Education (MARSE) states the public agency shall respond, in writing, to the request within 7 calendar days of its receipt by indicating the public agency’s intention to honor the request or to initiate the hearing procedure under R 340.1724.

If your child’s teacher was not present for the complete IEP team meeting

34 CFR § 300.321(a)(2) of the IDEA requires not less than one general education teacher of the student participate in the IEP team meeting.

If the district makes any changes to the services being delivered under your Child’s IEP and doesn’t give you prior written notice

34 CFR § 300.503(a)(2) states written notice must be given to the parents of a child with a disability a reasonable time before the public agency proposes to initiate or change the identification, evaluation, or educational placement of the child.

If your child’s IEP doesn’t include measurable goals

34 CFR § 300.320(a)(2) of IDEA requires the IEP include measurable goals including academic and functional goals that meet the student’s needs that result from the student’s disability

34 CFR § 300.320(a)(3)(i) of the IDEA requires the IEP to include a description of how the student’s progress toward meeting the student’s annual goals will be measured.

34 CFR § 300.320(a)(3)(ii) of the IDEA requires the IEP to include a description of when the district will provide periodic (interim) reports on the student’s progress toward the annual goals.

R 340.1721e(1) of the MARSE requires the IEP to include in writing a statement of measurable annual goals, including measurable short-term objectives.

If your child’s IEP doesn’t specify when you’ll receive periodic progress reports

34 CFR § 300.320(a)(3)(ii) of the IDEA requires the district provide parents a description of how the student is progressing toward meeting the student’s annual goals on a periodic basis.

If you are not receiving periodic progress reports as specified in the IEP

Rule 340.1722(2) of the MARSE requires the district provide the programs and services identified in the student’s IEP.

If the district is not providing the services, technology, or other assistance specified in the IEP

R 340.1722(2) of the MARSE requires each public agency to provide special education and related services to a student in accordance with the student’s individualized education program.

If the district determined your child did not have a specific learning disability on the basis of your child’s scores (i.e., percentiles) on grade-level norm-referenced assessment scores

34 CFR § 300.309(a)(1) states the evaluation team may determine that a child has a specific learning disability if the child does not achieve adequately (1) for the child’s age, or (2) to meet State-approved grade-level standards. State-approved grade-level standards are things like the MEAP; State-approved grade-level standards are not grade-level norm-referenced assessments. Grade-level norm norm-referenced assessments measure achievement levels and performance as compared to other students in the same grade. Scores from such assessments (e.g., your child being at or below the 9th percentile nationally when compared to students in the same grade) are not permitted or required to demonstrate inadequate achievement under 34 CFR § 300.309(a)(1)

34 CFR § 300.309(a)(2)(ii) states the student must demonstrate a pattern of strengths and weaknesses…relative to (1) age, (2) state-approved grade-level standards, or (3) intellectual development. The district may not require your child to demonstrate strengths and weaknesses on grade-level norm-referenced assessments in order for your child to be SLD-eligible. The use of such assessments in determining SLD eligibility is not permitted or required to demonstrate strengths or weaknesses under 34 CFR § 300.309(a)(2)(ii).

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