March 10, 2017
Re: Request for guidance in a systemic issue: Evaluation Timelines
First, I would like to wish you, your family, and your staff a belated happy new year. I am sure you join me in wishing that this be the best year yet for the education of children with disabilities. I first drafted this letter to you on the 3rd of January and then … well other work got in the way. In addition, we sought input from other attorneys and advocates around the state.
I want you to know that over the last few years, my respect for you and the Florida Department of Education (FDOE) has grown considerably. Your position and responsibilities are not easy, but I have found that you truly take seriously the role of mediating between parents and school districts, with the goal of seeking appropriate education for the child taking precedence.
Request for Guidance
I am writing this letter, first on the behalf of Special Education Law and Advocacy (SELA),and then more broadly on the behalf of all parents, advocates, and attorneys who may find themselves confronted with the same issue. As you are aware, SELA has team members, attorneys and advocates, serving a majority of districts in Florida. From that perspective, it is easy for us to identify important issues that appear to be systemic across the state. In December, we had a firm meeting, and part of our discussion revolved around a consensus that our firm should seek solutions to common educational issues that we find are repetitive and wide-spread. I advised the team that if presented properly, the FDOE may well be the best vehicle for addressing these matters.
While we are aware that we could challenge school districts individually in a state complaint format, and we are prepared to do that, it seemed to us that sometimes issues arise out of conflicting interpretations of the law and practice. In such cases, it would seem to me that the FDOE could provide guidance to clarify the state’s position on the issues. We understand that such guidance would not be “law;” however, such direction or guidance on certain issues has the potential value of resolving such disputes, without the necessity of adversarial state complaints or due process litigation.
We are thus seeking FDOE’s clarification and guidance in a formal statement concerning the below-stated issue regarding evaluation timeline lines.
Whether, when a parent of a child with an Individualized Education Plan (IEP) requests an evaluation for the purpose of identifying further suspected disabilities, such evaluation should be considered an initial evaluation relative to such suspected-but-unidentified disabilities, or it should be considered simply a re-evaluation?
Under the Individuals with Disabilities in Education Act (IDEA), specifically 20 U.S.C. 1414 a (1) (A, B and C), Evaluations, Eligibility Determinations, IEP, and Educational Placements:
(a) Evaluations, Parental Consent, and Reevaluations
(1) Initial Evaluations
(A) In General
A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter.
(B) Request for Initial Evaluation
Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.
(i) In General
Such initial evaluation shall consist of procedures—
(I) to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and
(II) to determine the educational needs of such child.
The same statute [20 U.S.C. 1414 a (2) (A) (I)(ii)] relates to reevaluations, and, as school districts are now asserting has no time requirements, they are applying this statute to argue that they have as much time as they want to complete the evaluation, and often as long as a year to do so.
(A) In general
A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)—
(i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or
(ii) if the child’s parents or teacher requests a reevaluation.
Further under (20 U.S.C. 1414 b (3)(b)(B) there is a requirement that the child be evaluated “in all areas of suspected disability.”
(3) Additional Requirements
Each local educational agency shall ensure that—
(b) Evaluation Procedures
(B) the child is assessed in all areas of suspected disability;1
Until recently, school districts across the state seemed to be making an effort to meet the 60-day requirement when parents requested evaluations for the purpose of identifying suspected, but previously unidentified, disabilities. More recently, however, school districts have begun identifying any evaluation request made after the initial determination of eligibility for exceptional student education services, as a request for “reevaluation,” regardless of the fact that the request may be for the purpose of identifying an, as yet, non-identified disability This classification of the request is made along with an assertion that there is no specific time requirement on reevaluations.2
We believe that this unfortunate change of positions by school districts is a coordinated, concerted position across the districts. Further we find that this “interpretation” of the law has been put forward primarily for the improper purpose of denying children with disabilities their right to a timely evaluation and prompt identification of their disabilities.
We have two basic arguments against the above interpretation being given to parents by school districts. It maybe that the IDEA did not have fully contemplate the scenario of a student once identified as a child with disabilities, may need further evaluation to identify other disabilities, which should have been, but were not, in fact, identified during the initial evaluation. We note, however, that the term “reevaluation” applies only to evaluations given for the purpose of determining ongoing need for services and NOT the identification of additional unidentified but important disabilities.3 There is much less urgency when conducting re-evaluations, than there is when one is attempting to evaluate for an unidentified disability, which is causing the child to lose educational opportunity.
The argument of school districts followed to its logical strict conclusion, means that IDEA students, with as yet unidentified disabilities may be left without right and without recourse for prolonged periods of time. That is exactly the loophole that school districts are attempting to exercise. The Department surely must agree with us that there has to be a way to fairly protect the rights of such students. This is the basis upon which we now appeal to the Department to provide guidance to parents and school districts, which will assure that these children are protected.
Above I noted that there are distinct differences between “initial evaluations” and “reevaluations.” Below I cite to definitions sited by Special Education Connection (LRP) – SmartStart article on Evaluations. Such citations provide some definitions, which I believe we all, including school districts, can agree upon.
The IDEA defines “evaluation” to mean the procedures used to determine whether a child has a disability and the nature and extent of the child’s need for special education and related services. Those procedures must comport with the requirements set forth at 34 CFR 300.304 through 34 CFR 300.311. 34 CFR 300.15.
An evaluation under the IDEA serves two purposes: identifying students who need specialized instruction and related services because of an IDEA-eligible disability; and helping IEP teams identify the special education and related services the student requires. 71 Fed. Reg. 46,548 (2006). See, e.g., A.W. v. Middletown Area Sch. Dist., 115 LRP 4105 (M.D. Pa. 01/28/15) (holding that a student’s evaluation was inappropriate because it lacked information from which the district could develop a positive behavior plan, craft IEP goals, or rule out a specific learning disability).
The IDEA distinguishes between initial (or preplacement) evaluations (34 CFR 300.301 ) and re-evaluations > of students who already are receiving special education and related services under the IDEA (34 CFR 300.303 ). The former refers to the first evaluation, while the latter refers to the follow-up or repeat evaluations that occur throughout the course of the student’s educational career.
Another citation to an LRP – Special Education Connection – on the purposes of reevaluation, expands on that issue in a meaningful way.
Pursuant to 34 CFR 300.305 (a)(2)(i)(B) in the case of a reevaluation of a child, the district must examine whether the child continues to have such a disability, and the educational needs of the child.
A district must also examine whether the child continues to need special education and related services. 34 CFR 300.305 (a)(2)(iii)(B).
34 CFR 300.305 (a)(2)(iii)(iv) provides that a district must examine 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 IEP of the child and to participate, as appropriate, in the general education curriculum.
The essential purpose of the two very different types of evaluations
We feel that any equitable examination of this issue must consider the essential purposes of the two types of evaluations.
First, the “initial evaluation” is for the declared purpose of identifying a child’s disability, determining whether the child is of need of specially-designed instruction, and “to determine the educational needs of such child.” We acknowledge that since the child in our scenario has already been found to be a child with a disability and in need of specially-designed instruction, he has had an “initial evaluation.” The issue is what if, after such initial evaluation and admission to an ESE program, it becomes apparent that the child has other, as yet, unidentified disabilities? Too bad? Can the school take its time in doing the appropriate evaluations, which should have been done to start with? Can they take six months? A year? Under the districts’ position there is no framework or timeline.
Let me give some examples. We frequently see high-functioning children with autism, where the parent has a private diagnosis of autism and has provided said to the school. The school evaluates for the most obvious and evident language issues and finds the child eligible for an IEP under Language Impaired. The child has social/emotional/ behavioral issues at school. He is being severely disciplined because we all know that such behavior cannot logically be a manifestation of a language impairment. Is it okay to tell the parent we will consider doing the evaluation, when we get around to it? In the meantime the child is circling the drain.
The same things happens to children with autism, who may have first been identified with SLD, ADHD, ID, etc. One might argue that this does not matter, because once the child is “in” ESE, the child can get anything that the child needs, and on a technical ground I might agree. The reality, however, is very different. Schools are not going to provide the same level of services to a child labeled ADHD as they would offer to a child with autism, unless there is evaluative data showing that the sensory, language, social skills, and sensory integration create additional needs for support due to autism. It is exactly this type of evaluative data school districts are beginning to treat with such cavalier indifference, while parents are begging for these essential evaluations.
In my opinion, school districts need to be reminded that they have the ultimate obligation “to seek out and identify children with disabilities.” Moreover, they have the obligation to evaluate children in every area of suspected disability.4 Whose fault is it that children are given perfunctory, limited evaluations, which entirely miss disabilities for which the student records contain ample evidence from which to suspect further disability? Should parents have to go to educational attorneys or advocates to have someone review the records and carefully interview them in order to discover the likely causes of the child’s struggles at school? Should they then have to wait an inordinate amount of time to obtain an appropriately comprehensive evaluation, due to the district’s failure to evaluate comprehensively in the first place?
Please do not presume that I am exaggerating for effect. If necessary I could cull my files and find you an arm load of cases where this was in deed the dilemma parents have faced. As I have said, in the past the need to go back to the district for evaluations they initially failed to do was simply a nuisance, because the districts generally stepped up in a responsible manner and performed the required evaluations. Now districts are en masse refusing to do the evaluations with any sense of timeliness or responsibility.
Before moving on, let’s look at the purpose of the “re-evaluation.” Primarily, the re-evaluation requirement was created because Congress was concerned that once children were placed in special education, they may never get out. It is very fair to say that the reevaluation requirement was created to determine whether the child still has the disabling condition and whether the child continues to require special education. The statute also suggest that the reevaluation can be used to examine issues as to why a certain student is struggling and to better define the student’s educational program.
Neither rationale for “reevaluations” was for the purpose of identifying heretofore unidentified disabilities. For school districts to excuse their delay in the conduct of evaluations on the grounds that the needed evaluations are “reevaluations” and they, thus, have no requirement to conduct the evaluations on a timely basis, is simply not coherent and can in no way be fair or equitable.
The importance of timely evaluations
Finally, we come to the issue of timeliness. Regardless of the “type” of evaluation the district claims is appropriate (initial or reevaluation), school districts have an obligation to evaluate students within a reasonable time. I believe the courts will define reasonableness far more in terms of the urgency of the circumstances, than the technicality of established timelines. In fact, I do not read the statutes as saying that the districts can wait out their 30 days for consent and 60 days for evaluation, without regard for the urgency of the evaluation. Rather, I interpret it to mean that they may not, whatever the circumstance go beyond that timeline. I do not believe that school districts are protected by the fact that there are no timelines established for “reevaluations.” Relying upon that pretense may cause districts to be found to have denied appropriate evaluations and to have thus denied FAPE, when they arbitrarily think that they can wait six months to a year to do urgently required evaluations.
Our insistence on timeliness is not because we do not like to wait. School districts have 101 ways to keep us waiting for a lot of matters. This is about children, who are struggling and not simply not making it. We have clients who are being suspended, who are failing to make progress, or who are at risk of not graduating, and we are told to wait for six months. Regularly our clients notify us that they cannot wait any longer and they grab the McKay or the Gardiner and flee the public schools. Maybe that is acceptable to some school districts, but it seems shameful. We are still a strong proponents of public schools over the alternatives, but it is getting harder and harder to be positive in this environment.
It is our hope that the above will open appropriate dialogue and encourage reasoned research and efforts at resolution of this thorny issue. We are prepared to meet with any set of school board attorneys who would like to come up with a protocol for “identification” evaluations, so that we are not having to litigate these issues.
We feel that the best way for the FDOE to help would be to examine our arguments herein presented and to produce written guidance, which would be instructive to parents, parent representatives, and school boards. We strongly feel FAPE is being denied to children with disabilities due to the prolonged evaluation timelines many of our clients have experienced. Any sense of equity drive all of us to seek a solution.
We understand that it is going to take some time to review this matter and to consider the best course for your bureau. At the same time, we would like a reasonably prompt response as to what you are thinking and what direction you may want to take. While we are amenable to trying to work out some understanding with the various districts, we remain convinced that the only way to resolve these issues would be with a guidance from your bureau.
Again, I appreciate your time and support in building a collaborative working relationship for the benefit of students in the State of Florida.
Mark Kamleiter, Esquire
Senior Attorney, SELA
cc: Attorneys & Advocates within the firm