You Asked! Question 11

Q11:  I am a teacher and suspect one of my students may be displaying signs of dyslexia. What should I do?  Is it okay to alert the parents as to my concerns?

A:  Teachers see student performance in the educational environment directly. You are a critical source of information to parents and the special education team, who depend on your expertise and experience. It is important to understand that early identification and appropriate intervention with students who show the warning signs of dyslexia are essential for better outcomes later on.  If you have any reason at all to suspect that a student may have a disability that may be interfering with learning (not simply “academics”), you are legally obligated to refer the student for evaluation under the “Child Find” obligation of the special education law ((20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); Ed. Code, §§ 56171, 56300 et seq.). Child Find does not prevent you from discussing your concerns with a parent—in general, such discussions are a regular part of a teacher’s job. The parent also has the right to make a referral for special education assessment. However, Child Find is not based on action or inaction of a parent- once an educator has a reason to suspect that a child may have a disability, your legal obligation is triggered to refer the student for assessment, at which point the special education team should provide the parents with an assessment plan for consent to assess. Getting a decision in writing allows parents to use their rights under the law—including the right to refuse evaluation, or the right to challenge the district’s refusal.

Be aware that the threshold for suspecting that a child has a disability and referring for evaluation is relatively low. The question is whether the child should be referred for an evaluation, not whether the child actually qualifies for services.  After all, we can’t know the answer to that question until we have assessment data. The student should not have to fail a course or be retained in a grade in order to be considered for assessment.  The fact that a student is making adequate educational progress is not a valid reason not to assess.

“Child find” duty requires children to be identified and evaluated “within a reasonable time after school officials are on notice of behavior that is likely to indicate a disability”. A state or LEA “shall be deemed to have knowledge that a child is a child with a disability if [among other things] … the behavior or performance of the child demonstrates the need for such services”.

(Source:  Department of Education State of Hawaii v. Cari Rae S., 2001, 158 F. Supp. 2d 1190; 71 Fed. Reg. 46580 (Aug. 14, 2006))

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You Asked! Question 13

 

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Q13:  Student was assessed for Special Education eligibility and was denied. I believe my student has dyslexia. School disagrees.  What can I do?

A:  Independent Educational Evaluation (IEE) at District’s Expense: If you disagree with a school district’s assessment, you must specifically ask the district to pay for an independent educational evaluation (IEE). It is very important that you specifically state that you are requesting an IEE and that you are in disagreement with the District’s assessment. You are not required to specify why you are in disagreement unless you choose to do so. A template IEE letter can be found at https://dredf.org/special-education/sample-letters/

When the school district receives your request for an IEE, the school district has only two options: Fund or File. That is, the district must either pay for the independent evaluation (Fund) or file for Due Process (File), claiming that the district assessment is “appropriate.” If the district decides to go to a hearing, and the hearing officer determines that the school’s evaluation is appropriate, you have a right to the independent evaluation, but not at public expense (34 C.F.R. Sec. 300.502; Cal. Ed. Code Sec. 56329(b)). The district may ask you to identify specific areas of disagreement with its evaluation, but this cannot be used to delay the district’s response to your request (34 C.F.R. 502(b); Cal. Ed. Code Secs. 56329(b) & (c)).

Under federal regulations, the district must respond to your request for an IEE “without unnecessary delay” (34 C.F.R. Sec. 300.502(b)(2)). Under current California case law, “unnecessary delay” has been found to be more than ninety days (Pajaro Valley Unified Sch. Dist. v. J.S., 47 IDELR 12, 50 (N.D. Cal. 2006)). If the district fails to respond by either paying or filing for due process, it has failed to comply with the law. You could file a compliance complaint to ask the CDE to determine whether the school district should fund an IEE under those circumstances.

Note:  A parent does not need to choose an evaluator from a school district list. However, a school district may need to know more about evaluator(s) you select, in order to determine whether he/she meets the qualifications to administer the IEEs. If an evaluator the parent selects does not meet district criteria, parents must be given full opportunity to explain/request why this person, with this particular expertise is necessary to conduct the IEE. Determinations must be made on an individualized, case-by-case, basis.  Please refer to the attached Wrightslaw article on “Independent Educational Evaluations: Must Parents Choose an Evaluator from School’s Approved List?

Independent Educational Evaluation (IEE) at Your Expense: You can always obtain and independent educational evaluation (IEE) at your own expense and the school district must consider the results of an independent evaluation in any decision regarding the provision of a free appropriate public education to your child. The results may also be presented as evidence at a due process hearing (34 C.F.R. Sec. 300.502(c); Cal. Ed. Code Sec. 56329(c)).

Once you have obtained the IEE and are satisfied with it, provide a copy to the school district and request an IEP meeting to review the assessment. You should inform the district in writing of the recommended services or placement in the IEE that you are requesting for your child. This will allow the district time to provide you with “prior written notice” if the district refuses to provide the services or placement recommended in the IEE.

Also, be sure to let the school district know that you want someone to attend the IEP meeting who is authorized to respond to the IEE on behalf of the school district. You are responsible for paying for an assessment that you have obtained on your own, unless the district has agreed to fund it. However, if the district accepts the recommendations made in this assessment, you may be able to seek reimbursement from the school district.  (Source:  Special Education Rights & Responsibilities by Community Alliance for Special Education and Disability Rights of California, pages 2-16 through 2-19 http://www.disabilityrightsca.org/pubs/PublicationsSERREnglish.htm)

An excellent article regarding IEEs can be found here: https://secureservercdn.net/104.238.71.250/238.90d.myftpupload.com/wp-content/uploads/2017/03/547601-1.pdf

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