Protect your child NOW!!! It's that time of year again

Discussion in 'Special Ed 101 Archives' started by Martie, Jul 18, 2006.

  1. Martie

    Martie Moderator

    If a child is having behavioral OR academic problems in school, a parent can refer the child for a Full and Initial Evaluation (called a Case Study [and by other names] in various areas of the country). It is important that the evaluation request be in writing and sent Certified Mail to the school district's Superintendent and/or the Special Education Director.

    Receipt of the letter by the school district immediately kicks in a critical protection for your child as it relates to discipline. If you do not want an evaluation, or the school district has refused one, then you need to notify in writing by CERTIFED MAIL that your child MAY have a disability that impacts his/her ability to conform to school rules.

    Here is the relevant excerpt from the Federal regs: A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency,... may assert any of the protections provided for ... if the LEA had knowledge ... that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

    Your certified letter is proof the school district had "knowledge."

    You can learn more about it at or the full text of the citation is below.

    20 U.S.C.§ 1415(k)(8)(A)-(C)

    (8) Protections for children not yet eligible for special education and related service.
    (A) In general. A child who has not been determined to be eligible for special education and related service under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this part if the local education agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
    (B) Basis of knowledge. A local education agency shall be deemed to have knowledge that a child is a child with a disability if-
    (i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services;

    (ii) the behavior or performance of such child demonstrates the need for such services;

    (iii) the parent of the child has requested an evaluation of the child pursuant to section 1414; or
    (iv) the teacher of the child, or other personnel of the local education agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.
    (C) Conditions that apply if no basis of knowledge.
    (i) In general. If a local education agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).
    (ii) Limitations. If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, except that, pending results of the evaluation, the child shall remain in the educational placement determined by school authorities.

    Martie :warrior: :warrior: :warrior:
  2. Tera

    Tera New Member

    Thanks for the info, I didn't know that. Do you have to do this each year?

    What discipline is this referring to? For example, 2 days before the last day of school, my son was throwing a bag of strawberries around with some other kids, and then decided to shove them down a girls shirt. He was wrong, he needed to have consequences, but my issue is that the principal was a complete jerk about the incident and very rude. I'm tired of her demeaning and devaluing attitude that she projects to myself and my son, what can I do about that?

  3. Sheila

    Sheila Moderator

    No, it's not something that should have to be done every year.

    "Protections for children not yet eligible for special education" is a provision in the IDEA regs that affords non-IEP student's with-behavior problems the same disciplinary protections that IEP students have under the circumstances cited above. It's one of the reason's why we advise parents to "put it in writing" and "send it certified mail." Certified mail is a parent's proof that the school district has knowledge. explains some of the specifics.

    Does your son have a Behavior Mgmt Plan in his IEP? Has an FBA ever been performed?

    It's difficult for us to help without some knowledge of your child. Also, if you could put some information in your signature about your child's particulars.... Oldtimers has set in here, and I just can't remember the specifics for everyone.
  4. Martie

    Martie Moderator

    It is not absolutely necessary to do this every year but I would under certain circumstance such as: changing schools within the SD, if there is a change in administration (new principal, Director of Sp Ed, etc) or change in levels--el school to middle school.

    It is MANDATORY if your child changes school districts.

    The letter should contain the information that you have concerns aoubt your child's ability to keep up with the general education curriculum and/or conform his/her behavior to school rules DUE TO A SUSPECTED DISABILITY.

    This prevents the SD from saying that either your child is a brat who is choosing to behave badly or you are a bad parent who cannot control your child. It also prevents suspension beyond 10 days and expulsion because if there is a problem, the first thing the SD should do is provide positive behavioral supports while evaluating your child NOT punish your child.

    SEND IT CERTIFIED--there is no other way that "counts." Also get a return receipt and FILE IT IN YOUR WELL-ORGANIZED files that you are maintaining in case you need this information :smile:

  5. linda3

    linda3 New Member

    I'm not sure I'm reading the information on this thread correctly.
    This is basically only protecting your child that has not YET been found eligible or not eligible for special education, correct? What I mean is if you put it in writing requesting the full and ind. evaluation- from that point they are protected but what about once they do the evaluation. and they decide they are not eligible for SpEd -then they are no longer protected right?

    So there is where I'm confused. It seems that this is something you would have to do again year after year- or rather 60 days after 60 days? (if that's even possible.) I'm unclear how asking for them to be evaluated keeps them protected even if they are found not eligible for special education.

    I'm unclear how sending a message in writing protects your child. It seems to me it only protects the child until they are done with the evaluation and decide your child is not (supposedly!) eligible for Special Education.
  6. Martie

    Martie Moderator

    The issue is that the SD is on notice that there is reason to believe there MAY be a disability.

    Court decision after Court decision used to go against parents (who had often sought private Tx) when the SD denied knowledge that there COULD BE a problem.

    Not to alarm you (I'm not drawing parallels) but several of the most notorious school shooters of a few years ago were not identified, so the SD "knew" nothing--for purposes of legal responsibility.

    Even if your child does NOT qualify for an IEP curently, there is still the "notice" factor and it is in that fact, the the protection is found.

    Adolescents, in particular, can go downhill rapidly. A child could be found ineligible (grades not low enough YET) but then slug a classmate later in the year. With the above letter sent, the SD could not expel and would have to immediately either evaluate or reevaluate. With no letter, the kid is out the door the afternoon of the incident.

    I hope this clarifies.

    Sheila and I rarely disagree on things but I do think this letter should be sent annually even if it is not technically required. I think it is stronger to do that--then the SD can't say they "forgot" or misplaced the notice from three years ago.

  7. linda3

    linda3 New Member

    Thanks for explaining that. I guess that means even though they decided to "read" the evaluation their way and find him ineligible from some stupid rules they have- they have still in effect been 'warned' so he is protected. I appreciate you letting me know that. :D
  8. dreamer

    dreamer New Member

    Martie, I pm'ed you. (unrelated to this post)
  9. My son was supposed to start school on Aug. 28th but he was hospitalized before that date. I called the school to let them know & was told to just bring him in when he is released. Last night I got an automated message from the SD saying that my child had missed one or more days of school that week. On the first day of school I was supposed to turn in an IEP. I guess that's my SD's version of what you were talking about. Since he didn't start school I never turned it in. Should I give it to them ASAP? I don't want him to be penalized when obviously has behavior problems that prevent him from attending school. I'm new to this district and everyone so far as been extremely rude and ignorant. Nobody has any answers and no one will return my phone calls.