Reply to Denied evaluation for autism spectrum child at FCPS. Now what?

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[quote=Anonymous][quote=Anonymous]"If he's doing fine in school, they are not obligated to do any testing. You can do it, and use any results you get to support your claim that your kid needs special services. "

Were you a director of special education on of our local counties? Perhaps this is you on youtube?

https://www.youtube.com/watch?v=A6fcIqUHz8Q
A mom talks with the director of special education[/quote]

Thank you PP for posting this!  It is an advertisement for a special ed law firm in Montgomery County, Pennsylvania, but it is [b]hilarious[/b], and sadly accurate.

The PP who keeps saying "if he's doing fine in school, they are not obligated to do any testing" is wrong.  See the IDEA legislation, regulations and associated interpretations at idea.gov, in particular, this:

"Section 300.101(c) has been revised to clarify that a free appropriate public education (FAPE) must be available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade."

and this:

"Comment: Some commenters expressed concern that children with disabilities have to fail or be retained in a grade or course in order to be considered eligible for special education and related services.

Discussion: Section 300.101(c) provides that a child is eligible to receive special education and related services even though the child is advancing from grade to grade. Further, it is implicit from paragraph (c) of this section that a child should not have to fail a course or be retained in a grade in order to be considered for special education and related services. A public agency must provide a child with a disability special education and related services to enable him or her to progress in the general curriculum, thus making clear that a child is not ineligible to receive special education and related services just because the child is, with the support of those individually designed services, progressing in the general curriculum from grade-to-grade or failing a course or grade. The group determining the eligibility of a child for special education and related services must make an individual determination as to whether, notwithstanding the child's progress in a course or grade, he or she needs or continues to need special education and related services. However, to provide additional clarity we will revise paragraph (c)(1) of this section to explicitly state that children do not have to fail or be retained in a course or grade in order to be considered eligible for special education and related services.

Changes: Section 300.101(c)(1) has been revised to provide that children do not have to fail or be retained in a course or grade in order to be considered eligible for special education and related services."

The phrase, from the IDEA legislation that is guiding is "adversely affects educational performance".  A child can be passing from grade to grade, and can even be "doing fine" and receiving "good grades" and still be eligible for an IEP.  The analysis for "adversely affects educational performance" must be an individual one, and cannot rest solely on grades.  For example, a child who gets straight Bs in middle school, but would have gotten As but for the impact of his ADD/Inattentive which causes him to miss so many homework assignments it is bringing his grade down, would have demonstrated that his disorder (ADD) "adversely affects educational performance".  (Although it may be debatable, without further facts, whether that child needed "special instruction" in organizational skills, thus qualifying him for an IEP, or whether he merely needs accommodations to be reminded to write the homework and reminded to turn it in.)

If a parent disagrees with a school system's determination that the child is "doing fine" and thus the school system won't evaluate, the parent should, at a minimum make an administrative appeal (for which you do not necessarily need a lawyer, and the directions for which should be in a due process notification that you received).  Restate your case in the appeal, i.e., outline 1) disorder 2) adversely affecting educational performance and 3) requiring special instruction (or solely requiring accommodations if you are going for a 504) AND clearly state that you disagree with the IEP team's decision and on what basis -- for example, "I am appealing because I believe that the IEP team incorrectly decided not to evaluate Johnny because he is ...... (fill in the blank)   "on grade level" or "not failing" or "not behind by two years" ..... and then cite to a description of the IDEA section above.

If you still disagree with the decision not to evaluate even after administrative appeal, you may be able to file for a school system-paid Independent Educational Evaluation.  Consult with an attorney for that.

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