WHAT TO DO IF YOUR SCHOOL WILL NOT EVALUATE YOUR CHILD
Updated: May 12, 2021
If your district consistently turns away or delays referrals, there is a problem in the system. This post gives an overview of how the special education referral process is supposed to work, followed by how to respond if you hit a roadblock along the way.
School districts are supposed to evaluate any child where there is reason to believe they may need special education. Sadly, there are some districts where that rule is misinterpreted. Feedback from last week’s post told me about some sad (and wrong) practices that deny or delay testing for some children.
Some schools do a brief screening or questionnaire, then give parents a notice that they will not proceed with a special education evaluation. Other schools tell parents their child must spend months in a “prereferral intervention” before they will start an evaluation.
Before I answer questions about these issues, I want to comment on a term used in the school evaluation process. The term “child with a disability” is a term required by the federal Individuals with Disabilities Education Act (IDEA). This law lays out all the rules for special education in U.S. public schools for children ages 3–21.
Only a “child with a disability” is eligible for special education with an Individualized Education Plan (IEP). Parents often have a hard time with this term, because they don’t feel the word fits their child. Try to get used to the term, because it comes up often.
The term disability points out a big difference between early intervention (EI) services for birth to three years and school services. Early intervention emphasizes preventing or reducing the effects of a condition that could lead to a disability. Children can be enrolled in EI because they have a diagnosed condition that’s associated with a delay, even before any delay is noted.
After age three, the focus is on supporting the needs of children whose condition has resulted in significant delays. The term for this significant difference is disability. Even with these stricter criteria, IDEA services are provided to 14% of students aged 3–21 years.
HOW IS THE REFERRAL PROCESS FOR A PRESCHOOLER SUPPOSED TO WORK?
Required for all school districts, child find is a collection of activities that are used to identify all children who may need special education. Activities include screening children, doing community outreach and inviting referrals from community providers.
The federal rule at 34 CFR 300.111 says, “All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated.”
The state of Iowa has a useful guide that explains how to recognize a child is suspected to have a disability and should be evaluated. Their main guideline is, “A disability is suspected when the child’s current performance falls below typical developmental or behavioral expectations, is unique when compared to peers, and no other more plausible explanation is evident.”
The district accepts referrals from a parent or any professional who works with the child. This could include a health care, early intervention or Head Start provider.
You’re not required to use a referral form. You can write your referral as a letter. Provide this information: child’s name and date of birth, your name and contact information, what you’ve observed about your child that indicates concern, and a summary of any information you might have from other sources like physician, private therapist or early intervention. Request that they do a full and individual evaluation to see if your child needs special education services.
As soon as the district receives a referral, they must give you a copy of the Procedural Safeguards Notice. This document describes your and your child’s rights to appeal if the district does not follow the correct procedures or you disagree with their actions.
The Safeguards document is long and hard to read, even though it is supposed to be in parent-friendly language. Hold onto it because it’s got contact information and resources that can be helpful if you have problems.
The district is to respond “promptly” to a referral. They have two options. They can decide that there’s not enough information to suspect your child may have a disability. In that case they must notify you that they will not do an evaluation, using a form called a Prior Written Notice (PWN).
The district’s second and more likely option is to go ahead with the evaluation. First, they review the existing information using your input and any other sources available. Based on the review, they decide what further testing will be done (if any) and who will perform the testing. I say "if any" because districts are allowed to adopt information from outside evaluations when it meets their criteria.
The district then sends you a Notice of Evaluation form that lays out the plan for testing. The plan comes with a permission form. The district can’t start testing until you return this permission form with your signature.
The day your district receives your signed permission sets a deadline. The district must complete all testing and have a meeting with you to review the results within 60 school days.
Some states require the district to send you a copy of the evaluation results before the meeting, Any district should do this if you request to receive it 5 days before the meeting. You could write your request on the signed permission to evaluate.
At the evaluation meeting, the team (which includes you) review the results of testing. Two questions must be answered in order to determine if your child is eligible for services.
The first question is: Does your child have a disability? Each state has guidelines for how to determine if the child’s impairment is significant enough to be a disability in one or more of these categories: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impaired, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment.
There’s a special category called developmental delay that’s used only with ages three to nine. In some states the age limit is lower than nine.
If your child meets the criteria for one of the 13 categories, the evaluation team must then decide on the second question: As a result of this disability, does your child require special education and related services? In other words, will they need special support so they can participate in the curriculum expected for their age and make adequate progress?
If the answer to both qualifying questions is yes, the team will then develop an IEP. They’ll write down the decisions from the meeting and send you a copy of the final IEP document. This also comes with a permission form. The district can’t start services until you return the form with your signature.
Now—what about the times when the process doesn’t go smoothly? One thing to always do in these cases: Put everything in writing. You may need the paper trail later. There’s an old saying, “If it isn’t in writing, it didn’t happen.” Communicate through email. If you have a conversation, follow up with an email to that person summarizing the highlights of the conversation.
CAN A SCHOOL REFUSE TO EVALUATE A CHILD WHEN REQUESTED BY A PARENT?
Yes, but… Schools are allowed to deny a request to evaluate if they give you a form called a Prior Written Notice (PWN). The rule at 34 CFR 300.503(b) says the PWN must include, “(3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action,” and “(6) A description of other options that the IEP Team considered and the reasons why those options were rejected.”
The district is required to evaluate any child when they have reason to believe the child may have a disability that requires special education. Read the PWN carefully to find the district’s justification for their response to the information you provided in the referral.
Did they list all the sources of information you provided and explain the reasons that did not meet their standard?
Did they explain why the existing information does not indicate that your child may have a disability? Remember, it doesn’t need to prove they have a disability. It only has to show that there’s enough to suspect there could be.
IDEA has a strong bias toward following through on a parent request. The rule at 34 CFR 300.309(c)(2) says, “The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services…[w]henever a child is referred for an evaluation.”
If the district sends you a PWN that declines to evaluate, send an email to the director of special education with a copy to the district superintendent. Tell them why you believe your child may have a disability and why you think the district’s PWN shows they overlooked some information. Ask them to reconsider the decision and proceed with testing.
CAN A SCHOOL REFUSE TO EVALUATE A CHILD REFERRED BY THEIR EARLY INTERVENTION PROGRAM?
They shouldn’t. Both EI and school programs are governed by IDEA and are designed to make the transition between programs “smooth and effective.” The federal Office of Special Education Programs (OSEP) in the Department of Education oversees the rules for IDEA. OSEP publishes letters and memos that help explain the rules. One of their guidance letters is related to transition from EI to preschool.
OSEP’s answer to question #3 in the letter explains that EI staff are is required to set up a transition conference between EI, the family and the school “for any child who may be eligible for school services. Therefore, the lead agency [EI] is required to make a determination if a child is potentially eligible for Part B services in order to determine for which children the lead agency needs to hold those transition conferences…”
They go on to say, “It is vital that Part C [EI] and Part B [school] staff work collaboratively to develop such criteria for determining which children are potentially eligible for Part B services in order to ensure that all eligible children who transition from Part C to Part B receive FAPE by their third birthdays as required under IDEA section 612(a)(9).”
Every state has an interagency agreement between early intervention, Head Start and school programs so they can coordinate services for young children. Your EI and local school programs are supposed to work collaboratively. Sometimes that breaks down at the agency level and sometimes at the individual staff level.
Your case coordinator is supposed to know the criteria used by the state for deciding if a child is eligible for preschool special education services. They need to use those criteria when deciding if a transition conference should be held. The requirement is to only hold a transition conference when it’s believed the child may meet the eligibility criteria.
Districts are supposed to assume that a transition conference indicates the EI agency believes the child may need special education. Believing a child may have a disability is all that’s required for starting the process for an initial evaluation.
If your EI agency does a good job of documenting their measurements and observations, the district should initiate the evaluation. If the district denies an evaluation, send an email to the director of special education with a copy to the district superintendent. Tell them why you believe your child may have a disability and why you think the district overlooked some information. Attach copies of your documentation from EI and any other sources. Ask them to reconsider the decision and proceed with testing.
CAN A SCHOOL DISTRICT REFUSE TO EVALUATE A CHILD BECAUSE THE CHILD PASSED A SCREENING?
No. Screening, which is a quick sampling of skills, is a good idea when used for its intended purpose. Districts are required to do “child find” activities to look for all the children who may need services. Screening is the best way to rule out a lot of children who clearly don’t need services.
Screening is just a rough estimate, though. There will always be some children whose needs are missed with this fast look. In addition, some districts use screening tools that are not valid and reliable indicators of a child’s performance.
If the district uses a valid screening process, it’s reasonable for them to say, “We don’t recommend an evaluation.” However, if you have concerns you still have the right to request the district do a complete evaluation.
Send a letter to the Director of Special Education with your documentation of why you believe your child may have a disability. Request that the district do a full and individual evaluation.
AFTER A REFERRAL IS RECEIVED, CAN A DISTRICT USE SCREENING RESULTS AS THE BASIS FOR NOT DOING AN INITIAL EVALUATION?
No. See the previous question. Your district might want to do a screening before they process your referral. You can agree to this if you want to, but it is not a required part of the process. If you have general concerns, a screening might be a good place to start.
You may have been advised by your pediatrician, therapist or EI provider to seek an evaluation. Or you may have strong concerns that you want tested now. In either case, waiting for a screening just slows down the process. You can tell the district that you believe your child needs services and you don’t want to delay. (See further information about delays, below.)
CAN THE DISTRICT PUT MY CHILD ON A WAITING LIST TO RECEIVE TESTING?
No. The rule at 34CFR 300.309(c) says, “The public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services...(2) [w]henever a child is referred for an evaluation.”
Sad to say, many special education departments are understaffed and overworked. Some delays may happen. However, the word promptly is usually interpreted as within 10 days. When you send your referral letter, make a request to receive the evaluation plan within 10 days.
If you don’t receive the evaluation plan within 10 days, send an email to the director of special education with a copy to the district superintendent. Tell them the date you delivered your referral and the date that you requested to receive the testing plan. Include this quote from OSEP 11-07 Memorandum to State Directors of Special Education: “it has been the Department’s longstanding policy that the LEA must seek parental consent within a reasonable period of time after the referral for evaluation.” Ask when you can expect to receive the documents.
AFTER A REFERRAL IS RECEIVED, CAN A DISTRICT USE RTI OR MTSS AS THE BASIS FOR NOT DOING AN INITIAL EVALUATION?
No. As a matter of fact, a guidance letter from OSEP has the catchy title: A Response to Intervention (RTI) Process Cannot Be Used to Delay–Deny an Evaluation for Eligibility under the Individuals with Disabilities Education Act (IDEA).
Let’s back up and define the terms RTI and MTSS. Both are terms for a system of increasing supports given to struggling students. When these supports are provided systematically, many students improve their skills and don’t need more specialized help.
RTI stands for response to intervention. This term is used in IDEA as a way to identify children with a specific learning disability. Instead of using a standardized achievement score, staff can measure students' progress over time while they get small group, focused instruction on their skills. Any special difficulties a student shows during RTI can be used to show they qualify as learning disabled.
MTSS stands for multi-tiered system of support. It’s a general term for a collection of activities a district uses to provide increasing levels of support for children in their regular classes. It can include things like reteaching by the teacher, tutoring, Title One services and other help. When these usual supports don’t help the child make enough progress, the child is referred for an evaluation.
RTI or MTSS is an internal process used by the school to support students and identify what level of support a student needs. It makes sense to follow the steps for most students. Many schools are expanding the use of RTI or MTSS into other areas, including speech and language. That’s great to have SLPs involved in supporting students. RTI should not, however, be used to prevent or delay the evaluation of any student when needed.
RTI and MTSS do not apply when a parent requests an evaluation. OSEP’s guidance letter made that clear. The district has only two options when they receive a parent referral: (1) start the evaluation process or (2) give the parent a PWN explaining why they won’t evaluate.
The OSEP letter points out that IDEA doesn’t state a specific time frame between the date a referral is received and the date a parent receives the evaluation plan and permission form. The letter says, however, “it has been the Department’s longstanding policy that the LEA [school] must seek parental consent within a reasonable period of time after the referral for evaluation.”
Don’t accept the delay if your school tells you they will hold your referral until your child goes through their RTI or MTSS process. Send an email to the director of special education with a copy to the district superintendent. Tell them why you believe your child may have a disability. Tell them OSEP says their process can’t delay a parent-requested evaluation. Attach a copy of the OSEP letter. Ask them to reconsider the decision and proceed with testing.
I’d estimate that 80% of the time when you send an email in response to one of these issues, the district will agree to begin testing. For the remaining 20% of cases, you will need to refer to your Procedural Safeguards Notice (see Referral section).
Every state has at least one Parent Training and Information (PTI) Center. You can find a list here. These PTI Centers help parents understand the rules for EI and school programs under IDEA. They can give you guidance on the appeal options described in your Procedural Safeguards. Your first call when you have questions about your child’s evaluation or IEP should be to your PTI Center. It will be better than any advice you get online because you actually get to talk to a human.
One final word of advice. It’s unfortunate that you’ve hit a snag so early in your journey through the school system. Remember you’ll be working with these folks for many years. They’re doing the best they can and they are there because they want to help your child.
Try to stay positive and keep everyone’s focus on what’s best for your child. Working through your issues could help you build a strong relationship with the school that will have many benefits for your child in the future.