First time post

[Freeda111]

Hi Shelia and Martie. I'm a long time lurker here and have learned so much about Special Education from you guys. I've just run into a situation that I've never encountered before, and was wondering if you could provide insight. We have a signed sealed IEP that everyone agreed to in May of last year for use this school year. We are starting 5th grade on Monday in Eastern NC.
DJ has had an IEP for three years. He is mainstreamed and has had resource room help for reading and math. In May we added writing as another area of services. I didn't realize that to add an area of service, DJ needed to be tested in that area prior to adding it to his IEP. The LEA, the Easy Child teacher and the regular teacher all agreed in May that he needs help with writing, and we have samples of his writing throughout the year last year and he failed the EOG for fourth grade writing as well.

Today I get a call from this years Easy Child teacher who stated that the current signed IEP is not "in conformance" and he is not eligible for writing services because he wasn't tested and found eligible for those services.

I wasn't very happy since this means the parent consent forms filled out, testing, and a re-write of the IEP before he can receive services for writing. (The three year rule for mandated evaluations would kick in in November.)
Isn't the IEP a legal document as written right now? I thought I could force them to comply and begin services based on that document.
What do you think I should do? Thanks in advance for any advice.

 

[Sheila]

Hi Freeda111; glad you decided to join us.

Whether services are being increased or decreased, a "change of placement" does require an evaluation.

I'm not big on evaluating via "informal means" -- too many things are missed. However, based on a letter from OSEP dated February 6, 2007, the IEP team did an evaluation at the meeting.

Question 3: May a review of extant data alone, with the finding that no additional data are needed, constitute a reevaluation in toto?

·Response: Yes. Based on the review of existing evaluation data, and input from the child’s parents, the IEP Team and other qualified professionals, as appropriate, must determine whether additional data are needed to determine whether the child continues to be a child with a disability, and the educational needs of the child; the present levels of academic achievement and related developmental needs of the child; whether the child continues to need special education; 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 IEP of the child and to participate, as appropriate, in the general education curriculum. 34 CFR §300.305(a)(2). If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability, and to determine the child’s educational needs, the public agency must notify the child’s parents of: (i) that determination and the reasons for the determination; and (ii) the right of the parents to request an assessment to determine whether the child continues to be a child with a disability, and to determine the child’s educational needs. 34 CFR §300.305(d)(1). Under these circumstances, the public agency is not required to conduct an assessment unless requested to do so by the child’s parents. 34 CFR §300.305(d)(2). If the parents do not request an assessment, then the review of existing data may constitute the reevaluation.

You can download the letter from http://www.ed.gov/policy/speced/guid/idea/letters/2007-1/redacted020607eval1q2007.pdf .

If I were you, I would insist on the IEP being carried out as written pending receipt of the 3-yr full reevaluation. They should be starting the re-evaluation soon. It takes 60 - 90 days to get the evaluation done and reduced to writing, so perhaps this will give you some negotiation room if needed.

If you're told that state or school policy requires something different from the OSEP letter, ask of a copy of it.

Also, just so you know, Federal law supercedes State law and school district "policy."

 

[Freeda111]

Thanks Shelia. We also have a private tutor who is a Special Education teacher from another District who told us she thinks there is a current "push from above" to reduce the numbers of children being pulled for resource time. Since this is technically a "change in placement" because he will spend more time in the resource room, I think they may be looking for a technicality to keep from adding more time.

However, my other main concern is that this is the Easy Child teacher we will work with all year. If I thought she wasn't arguing about if he qualifies for writing services, but just saying that he needs the testing to prove it, I would feel better letting this slide.
I try really hard to be a team player, to keep things from being confrontational.
But taking your advise to others several years ago after meeting with resistance from the school to do testing, we went to Greenville and got all of our testing done privately. Then when presented with a very complete evaluation and recommendations for remediation, the school has for the most part done what he have asked.
I think I need to tread lightly, but maybe presenting the above letter will be all it takes to calm this down.
I told the new Easy Child teacher yesterday that she needed to concentrate on DJ's current needs as she defines them in the first few weeks of school, and I'll be willing to give permissions for any re-evaluations that the school wants to do. Privately I already know that if I don't agree with their results, we will go back to Greenville.
Thanks again, and I'll keep you posted!

 

[Christy]

Can you ask that he continues to receive writing support while he is being evaluated? Many students, even those who do not receive Special Education services receive interventions in areas of academic weakness. A student can receive accomadations without an IEP, it is just not required until it is in a 504 or IEP.

Good Luck!
Christy

 

[Freeda111]

Update:
Hi Christy! Got a call yesterday morning from our school that said they would do just that! He will get writing assistance during the time the evaluations are being done. Also, I went ahead and scheduled private evaluations agian. NC STILL uses the discrepancy models, which require a 15 point difference between achievement and abilities. I can't believe that is still in the 2007 NC governing regulations. The way they get around the Federal rules is they have two other eligibility determinations that can be used, but what happens in the real world is all the school psycholgists prefer the discrepancy models because it is very easy to play with the numbers.
They still may argue with the private evaluation, depending on what it says, but at least we'll have some wiggle room.
I really hate all the research hours and money we spend, but I also know that many children who need help don't get it because their parents can't or don't know what to do to have the best chance at getting services for their children.

 

[Christy]

I'm glad they are still going to provide support!

Good luck with the private evaluations. Also, if the discrepancy between performance and ability is not 15 points, ask for them to qualify based on classroom performance. Determination cannot be based on one assessment alone according to IDEA.

Christy

 

[Sheila]

Good for them!