Categorizing Your Dispute
The school year is now well underway. It is a sad fact of life that as the school year rolls along, more and more disputes arise between parents and school systems regarding a child’s education. For disputes that cannot be resolved directly between the parents and the school systems, it is sometimes necessary to engage an attorney. When parents call my office, one of the first things I do is to categorize the dispute into one of four major categories (and then further sub categorize within those categories):
- Eligibility and Evaluations. Does the child have a disability? Is the child not making effective progress in regular education due to that disability? Does the child require specially designed instruction or related services in order to access the curriculum? If the answers to these questions are yes, then the child should be eligible for special education services.
- The Team process and IEP services. Who makes up the Team? Do Team meetings take place when and how they are supposed to according to the law? Does the IEP properly reflect the special needs of the child? Do the accommodations and services match what the medical professionals and recommended in the evaluations?
- Placement. Where will services be provided? In-district or out-of-district?
- Discipline. Has a child been removed from their educational placement because of discipline? Has this happened for more than 10 days? Did the school conduct a Manifestation Determination and a Functional Behavioral Assessment?
Once you know where the dispute exists within this special education “lifecycle,” you can then better understand your rights and the school district’s responsibilities under the law.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal disputes. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
Can a School District Use RTI to Delay a Special Education Evaluation?
The short answer is “no,” but since no attorney can ever give a one word answer, here are more details…
RTI stands for Response to Intervention. It is a way for schools to identify students who are at risk for poor learning performance, to monitor student progress, and to provide appropriate interventions depending on how a student responds. It is used for students who are struggling, whether or not they have disabilities. RTI has been very controversial, because some schools have used it to delay special education evaluations and implementation of special education services.
The federal Department of Education has characterized RTI as follows: “[T]he core characteristics that underpin all RTI models are: (1) students receive high quality research-based instruction in their general education setting; (2) continuous monitoring of student performance; (3) all students are screened for academic and behavioral problems; and (4) multiple levels (tiers) of instruction that are progressively more intense, based on the student’s response to instruction.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)
So here’s the problem: Parents have the right to request an initial special-education evaluation at any time to determine whether a child is eligible for special education services. When such evaluation referrals are made, most school systems conduct the evaluations in a timely manner. However, some school systems try to delay the evaluations to see what the results are of RTI.
A school system which tries to delay an evaluation due to RTI is at risk of violating both federal and state law. Federal law requires school districts to conduct an initial evaluation within 60 days of receiving parental consent for the evaluation. 34 CFR 300.301(c). In Massachusetts, the timeframe is even shorter: 30 school days from the time the parents provide consent. 603 CMR 28.04(2). These time frames do not provide for any exception due to RTI.
The federal Department of Education has clearly advised school districts that “It would be inconsistent with the evaluation provisions… [for a school district] to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)
For more information about the Law Office of James M. Baron, visit http://www.lawbaron.com.