I don't think state complaint results are right..

[sisymay]

What is the name of your state? Georgia.
Hello. I filed a state complaint because my school district would not do an initial evaluation to see if my child qualifies for special ed, the evaluation specified by IDEA laws.
The school was doing SST (intervention process) for almost 2 years without telling me I could request this evaluation. I didn't know anything about it.
As soon as school found out I filed the complaint, they agreed to do the evaluation.
The results of the state investigation is that the school is found in compliance. But the 'findings' did not mention that the school did anything wrong at all. The findings also state that the school is not suppose to determine eligibility on only one test. Which is what the school did when they did an SST assesment and said my child did not qualify to be REFERRED to special education, for the special ed. dept to do the initial evaluation to see if my child qualified for special ed.
The state results stated the school is not suppose to use this testing 'only' in deciding special ed eligibility. BUT, the state did NOT say the school was in violation of this. This is a violation according to IDEA laws.
State also said the school DID abide by 'child find' because they did SST for my child. HUH??? SST is NOT special education, and the school did NOT do 'child find' according to IDEA laws, they only did it by the SST process. This is another violation the school did that the state did not even mention.

When I first requested for this initial evaluation to be done by the school, the DISTRICT special education director said 'your child is not eligible to have this initial evaluation done because she is not recieving special ed services therefore not covered by IDEA laws'.
In other words, he's saying a child has to ALREADY be in special education to see if they can QUALIFY for special education.
I was in reed ******'s chat one thursday night and he said himself that's the most ridiculous thing he's ever heard.
There's a lot more to this story but I'll stop for now. My question is, can I do anything about this legally, or does the state have the last word??

 

[notsmartmark]

As I see it you have two complaint processes you could follow. You could initiate a Due Process hearing or file an OCR complaint.

I do not believe you have a strong case with the information that you have provided, and you would need to change your focus to have any chance. The most viable concern you raised, which will be very hard to prove, isn't that the District's Child Find procedures were not present, instead they were not adequate. Your best argument is the district should have known or at least suspected that your child had a disability and did not initiate a referral.

But the other complaints you raise have limited potential. If you can get the Sped Director to confirm your statement

"your child is not eligible to have this initial evaluation done because she is not receiving special ed services therefore not covered by IDEA laws."

You would still need to prove harm. From what you said, the district did initiate the referral process. You would not only need to demonstrate that the director said that and meant that the district would not refer your child, but that the district then did not refer or agree to your referral request.

The other concern is a misunderstanding of Sped regulations.

The findings also state that the school is not suppose to determine eligibility on only one test.

The SST process is not part of special education beyond an activity which can assist with Child Find. The single test you describe has nothing to do with any events prior to referral or even the referral process. What it means is after a student has be referred and the team decides that an evaluation is necessary, no single procedure shall be the sole criterion for determining a student’s eligibility or disabling condition and/or for determining the appropriate educational program for a student. Referral is the process to determine if a special education evaluation is necessary. You are talking about two very different ideas.

 

[sisymay]

Thank you so much for your reply. I will answer the best I can.

You wrote- Your best argument is the district should have known or at least suspected that your child had a disability and did not initiate a referral.

This IS what happened. The school has known for almost 2 years that my child has problems in learning. THEY were the ones who put her in SST and EIP for almost 2 years. THEY were the ones who wanted to do the SST evaluation for her, NOT me. After they did the SST assesment, THEY said she did not qualify to be 'referred' to special education. So, THEY did NOT initiate a referral for special education.

You wrote-You would still need to prove harm. From what you said, the district did initiate the referral process. You would not only need to demonstrate that the director said that and meant that the district would not refer your child, but that the district then did not refer or agree to your referral request.

The district DID initiate the the referral process by doing an SST assessment and then saying she does not qualify to be REFERRED to special education. BUT they did not AGREE to my request for the special education initial evaluation request that I initiated.
The director said all these things and a lot more in a meeting with 4 other school personnel. That would be the only way I could prove he said these things but I doubt if the other school personnel would admit he said these things. The only proof I have that the district did not agree to my referral request (which is my request for the initial evaluation to be done by sped)
is just by what he said.

You wrote-The other concern is a misunderstanding of Sped regulations.
Quote:
The findings also state that the school is not suppose to determine eligibility on only one test.

I KNOW this is not right, but it was the STATE who wrote this on their results report of the complaint I filed, that they investigated. So it is the STATE who has a misunderstanding of sped regulations.

You wrote- The single test you describe has nothing to do with any events prior to referral or even the referral process.

The single test I am describing was an SST assessment done to see if my child was eligible to be REFERRED to special education, and NOT to see if my child was eligible to recieve special ed services. So this test IS part of the referral process, because this test WAS DONE to see if she could be REFERRED to special education.

You wrote-What it means is after a student has be referred and the team decides that an evaluation is necessary, no single procedure shall be the sole criterion for determining a student’s eligibility or disabling condition and/or for determining the appropriate educational program for a student.

I understand this, but again this is what the STATE wrote in their report. The state wrote this about the SST assesment. That is what I couldn't understand. Why is the state saying this about SST when SST is NOT special education!!

You wrote-You are talking about two very different ideas.

I might not understand the whole process, but I do know that SST and special education are separate issues.

I am very concerned that the STATE does not seem to understand this fact..
Thank you again so much for your comments!!

 

[sisymay]

This is the exact words from the state complaint results that the state wrote about SST assesments and not special education evaluations-

'It should be noted that future decisions to refer a student for an initial special education evaluation should not be based solely on the results of SST screening data. Basing process decisions merely on test scores does not provide sufficient information regarding a students progress. It is imperative that SST recommendations are a team based decision utilizing information from parents, past and present teachers, and additioinal school specialists such as a school psychologist.

Is this correct? They did not include other things such as outside testing results and/ or a doctors diagnosis.

 

[notsmartmark]

Even though I’ve gone through this process with hundreds of families and my siblings, I can only imagine the intensity and number of the feelings that you are experiencing. I want to also add something that is important for both schools and parents to remember. The focus is the child, and no matter what is the outcome of this event you and the school will most likely need to continue to work together today, tomorrow and the day after. The most important thing for you child’s school success is a supportive team surrounding her. Please don’t let the intensity of the situation get in the way developing, maintaining or enhancing the team.

Given that; here’s my take on your response in no particular order. Te State’s response to the District’s SST process is more advice than a legal directive. Really, what the State is saying is the District should initiate a special education referral if they are going to deny an evaluation. The activities that the State described are required during the referral process, not necessarily during an SST meeting. If the District has a sufficient referral process, the areas that the State describes would have been reviewed during a referral. My mantra about referral is that referral is the process to determine if evaluation is necessary. The goal during referral is to collect all of the existing, pertinent information to make the decision if a special education evaluation is necessary. If your District followed that you would have been a member of the process and hopefully there would have been agreement. They could do it during an SST meeting, but it doesn’t provide parents the necessary protections of inclusion or notification.

The problem with the harm about the SST process and the need for special education referral is that it’s tricky. I agree if the District follows a child for two years in an SST, it begs the question, “Was it an effective process?” I think you would say that it wasn’t. The district will probably say something different. The challenge is both sides can probably point to different events.

The biggest area of concern is there seems to be confusion surrounding the District’s SST process. The State sounds confused and so do you and the District given what you have said. Most districts solely use the SST process as an informal means of using existing school and district resources to problem solve for students. Most of these teams do not formally decide not to refer, only to refer if they deem it’s necessary. I know it’s kind of playing with semantics, but it is important. In order to determine that a student shouldn’t be referred someone must have, or should have, thought about referring. If this is the case, which is what I’m expecting your District is doing, then you have the State advising them to complete referral activities during the SST process.

I know you have bigger fish to fry then these issues, but I hope this helps to relieve some of the frustrations you have been experiencing.

 

[sisymay]

Thank you so much again for your replies. It is a very confusing process that the IDEA laws do not clarify. The IDEA laws are so vague that anyone can interpret different meanings for it. And there is no one 'enforcing' these laws to make sure schools follow them. So it's a 'no win' situation altogether.
Anyway, I wanted to add something in case I didn't make this clear before.
The school had my dd in the SST process almost 2 years. They did do an evaluation to see if they wanted to refer her to the special education process. But they said, according to evaluation scores, she didn't qualify to be referred to special education for special education to do the initial evaluation to see if she would qualify for special education services.
Even though they did not want to refer her to the special education process, the IDEA laws state that a PARENT can request for the special education department to do the initial evaluation to see if the child qualifies to recieve special education services. NOT to see if the child can be 'referred' to the special education process. When a parent requests this, it overrides the SST process altogether.
And this is what I did. I made this request. And the special education director said my dd couldn't have this done at all. Now, according to IDEA laws, the school does not HAVE to do this evaluation just because a parent requests it. But, the school DOES have to give the parent a letter of 'prior written notice' to state WHY the school refuses to do the evaluation. This IS in IDEA laws.
I have heard a lot of people say that a school will not automatically give this prior written notice. And they don't. The parent has to ask for it, if they know to even do this. Most parents don't. This prior written notice is a powerful tool for parents, because most schools will NOT put their reasons in writing as to WHY they do not want to evaluate a child, because the reasons are most times ILLEGAL. So, when a parent asks for this PWN, the schools will 'usually' go ahead and do the evaluation because they have no LEGAL reason NOT to.
But, my school wouldn't even do this. That's why I filed the state complaint. After I filed the state complaint, the school then DID write this 'prior written notice' to me BUT this letter did NOT contain the 'reasons' WHY they did NOT want to do the evaluation. The school did not even do this legally and the state did not even do anything about this.
Another strange thing is, one day AFTER the school wrote this prior written notice for NOT agreeing to do the evaluation, (which was not written correctly), they sent me the consent form to agree to do the evaluation. Now, WHY did they send me PWN for NOT doing the evaluation, and then agreed to do it the very next day??
Thanks so much for your time!!!

 

[HomeGuru]

Thank you so much again for your replies. It is a very confusing process that the IDEA laws do not clarify. The IDEA laws are so vague that anyone can interpret different meanings for it. And there is no one 'enforcing' these laws to make sure schools follow them. So it's a 'no win' situation altogether.
Anyway, I wanted to add something in case I didn't make this clear before.
The school had my dd in the SST process almost 2 years. They did do an evaluation to see if they wanted to refer her to the special education process. But they said, according to evaluation scores, she didn't qualify to be referred to special education for special education to do the initial evaluation to see if she would qualify for special education services.
Even though they did not want to refer her to the special education process, the IDEA laws state that a PARENT can request for the special education department to do the initial evaluation to see if the child qualifies to recieve special education services. NOT to see if the child can be 'referred' to the special education process. When a parent requests this, it overrides the SST process altogether.
And this is what I did. I made this request. And the special education director said my dd couldn't have this done at all. Now, according to IDEA laws, the school does not HAVE to do this evaluation just because a parent requests it. But, the school DOES have to give the parent a letter of 'prior written notice' to state WHY the school refuses to do the evaluation. This IS in IDEA laws.
I have heard a lot of people say that a school will not automatically give this prior written notice. And they don't. The parent has to ask for it, if they know to even do this. Most parents don't. This prior written notice is a powerful tool for parents, because most schools will NOT put their reasons in writing as to WHY they do not want to evaluate a child, because the reasons are most times ILLEGAL. So, when a parent asks for this PWN, the schools will 'usually' go ahead and do the evaluation because they have no LEGAL reason NOT to.
But, my school wouldn't even do this. That's why I filed the state complaint. After I filed the state complaint, the school then DID write this 'prior written notice' to me BUT this letter did NOT contain the 'reasons' WHY they did NOT want to do the evaluation. The school did not even do this legally and the state did not even do anything about this.
Another strange thing is, one day AFTER the school wrote this prior written notice for NOT agreeing to do the evaluation, (which was not written correctly), they sent me the consent form to agree to do the evaluation. Now, WHY did they send me PWN for NOT doing the evaluation, and then agreed to do it the very next day??
Thanks so much for your time!!!

**A: something sound fishy and it appears the doe did not follow proper protocol with respect to IDEA. You have a right to appeal. There should be an independent private nonprofit office that can help you with these IDEA issues.

 

[notsmartmark]

Honestly, special education is what happens when lawyers try to manage education. There has been a lot of good from it, more uniform standards, better protections, and a means of resolve that, in theory, place both parties on equal ground. But, and this is a big but, our legal system is an adversarial system and it is a confusing, detailed system that is very ambiguous.

Here are my attempts to explain my take on this very challenging system. If a district seeks to resolve an education concern outside of the bounds of special education, like your child’s district did with the SST process, none of the special education procedures or protects are required to be followed. Notice of Action, Procedural Safeguards or any special education practices or policies are not theoretically necessary. It is a slippery slope, but it is a slope that can be walked by a district. To me, it solely depends on the way in which they denied the special education referral in the SST process. Was it an active or passive denial? Did someone during an SST meeting say they thought your child should be referred, or is it a check off box consideration? If someone actively said they thought your child referred, did the Team review the information before them, and say, “No.” Or, did the Team as part of their paperwork check off special education as currently unnecessary. If it was active, I believe all of the notifications and rights are necessary and exist, and a special education referral should have been initiated. You can see that the law is vague and interpreting it to determine local procedure has numerous paths. When you asked for an evaluation that actively initiated the process and mandated the processes and protections.

I have a different take on your statement that districts will usually go ahead with an evaluation because they have no legal reason not to. Most districts evaluate, even when they do not think a student will qualify, because of lawyers. Lawyers tell schools to evaluate because they can more easily defend an evaluation than a referral, and because judges will typically say why don’t you evaluate to resolve complaint.

One of the other things you bring up is the parent right to demand evaluation. I use “demand’ give the context that you say parents can override a district’s refusal to evaluate. This is the advice I give districts, but I don’t believe the override clause is in the federal regulations. Some states might have it in their codes because states can go beyond what the feds say, but I’m not aware of any states that do. Here’s the path that I get to your override clause. Anyone can refer any school-aged child for special education. Again, referral is the process to determine if an evaluation is necessary. The referral must be in writing, if the person can write, and must include who is referring and what is the concern. Parents have two strong weapons on their side. The first one is independent evaluation. If a parent disagrees with a district’s evaluation, they can request an independent evaluation. This is the referral denial override bomb. I know individuals who would argue that referral is not an evaluation, and that the parents’ true remedy is a Due Process hearing. It’s arguable, but it’s idiocy. I think where the override belief comes from is during reevaluation. Teams can now decide when they are reevaluating a student to determine if she continues to qualify to do only review of information and not to conduct new testing. Parents have the right to overrule this team decision and require new information gathered and testing completed. The scope of the testing still is the responsibility of the team to determine.

Again, I hope you can find resolve and have a team that surrounds your child. Lots of thoughts and wishes go out to you.

 

[sisymay]

Wow I still so much appreciate your help! I hope I can answer your q's ok! First of all, before I do, I wanted to explain more of my situation to explain 'why' the state investigated the SST process.
I didn't think this needed to be added, but with the questions you are asking I think I should add this now, to help you understand what I'm trying to say..
When my dd was in K, teacher noticed problems with attention. She asked for the SST process. I went to a few meetings, but they really didn't do anything to help her. A few months later they wanted to do their SST assesment to see if she would qualify to be 'referred' to special education, for special education to then do their evaluation to see if she would qualify for special ed services. (that is very confusing if you dont' understand it)
OK, After the SST assesment, they said they see no learning problems but only ADHD. On the assesment report it states 'not referred to special education at this time, will continue in SST process'
Well, over a year later she was getting worse. New and different problems started. At the time, I did not know the IDEA laws or that SST and special education was different. Most parents don't know this, and there is a lot of confusion. There is also a lot of 'tricking' done by the schools because they know that parents don't know about IDEA laws. This will explain why the schools do their 'tricks'.
I then made a written request for the school to pay for an 'independent educational evaluation by public expense', because I disagreed with the test results. By IDEA laws, when a school does their evaluation and a parent doesn't agree with the results, the parent has a right to request this.
At the time I made this request, I DID NOT KNOW that this evaluation the SST did was NOT the same as the evaluation that the special ed dept. does. The SST did NOT tell me it was different. And later you will know why. I thought this evaluation done WAS the one specified by IDEA laws to determine if a child can qualify for special ed. So, I asked IEE for school to pay for outside doctor to do testing because I disagreed with the evaluation the SST did. And the reason I disagreed with it is because I got people on the internet to look at scores, even educational lawyers and school psychologists, and they ALL said the testing was incomplete, raised more questions than answers, there was clearly a language processing problem shown that WOULD qualify for sped services because of the scores.
When I asked for the school to pay for outside doctor to do an evaluation (remember by IDEA laws a parent can ask for this if they disagree with schools evaluation) the school did not respond to me. According to IDEA laws, when a parent requests this, the school has only 2 choices. They either agree and pay, or they file for due process hearing to prove their own evaluation is sufficient. The parent does not file for due process hearing, the school does. My school did nothing. However, the district sped director DID call me and ask why am I doing this. I told him because I disagree with the testing and by IDEA laws I can do this. He NEVER told me this test was NOT the evaluation done to determine sped eligibility. Not even during this phone call. There is a reason why I will tell you in a minute. Anyway, He said 'your child is not recieving special education services therefore not covered by IDEA laws and therefore can not have this outside testing done' See, this is the exact same thing he told me when I asked to have the REAL evaluation done by the special ed dept for special ed. eligibility determination.
He never once told me that the evaluation that the SST did was NOT the same as the evaluation done by special education.
Well, I filed a state complaint. State told me that this evaluation done was an SST assesment and NOT an initial evaluation to determine sped eligibility, therefore they could not investigate my complaint because I did not have the right to request the school to pay for outside testing. I told the state that
I DID NOT KNOW THAT THIS TESTING WAS ONLY AN SST ASSESMENT! WHY DIDN'T THE SCHOOL TELL ME THIS WHEN I REQUESTED OUTSIDE TESTING??

A few days later, someone else from state called me because they happened to look over my complaint. They told me the statement 'not referred to special education at this time' was NOT suppose to be on the SST assesment, because SST is not the same as special education. They asked to see the whole evaluation report. Then they asked for more of my documents. I then told them the whole story and then they DID open my complaint and investigate it because of my confusion of their SST process. They said they were confused about it as well.
The state first told the school they would not be investigating, but when they re-opened the case, they did not tell the school (I don't think)
Anyway, at this time I made a written request to the school for the REAL initial evaluation to be done by the special ed dept to see if my dd qualifies for sped services. And overriding the SST process. THIS is when the district sped director said all this crap about 'she can't have this done because she's not already in special ed' he even said he doesn't have to give me prior written notice for anything.
So at this time I filed another state complaint. With 5 violations. Including child find, because according to IDEA laws the school did NOT conduct child find because they did NOT do the initial evaluation!! And the state said the school DID do child find because they did the SST assesment! And I KNOW this is WRONG because SST is NOT the same as special education!
OH, and the reason NO ONE EVER TOLD ME that the SST assesment was NOT the same as the special education evalution is this- they did not want me to know, because if I found out I would then ASK for the REAL evaluation to be done, and they didn't want to do it. They wanted me to think the SST assesment WAS the special education evaluation, so when they said 'not qualified for special ed' I would think there is nothing else that can be done and walk away. I HAVE LEARNED THAT SCHOOLS ALL OVER THE COUNTRY ARE DOING THIS, BECAUSE PARENTS DON'T KNOW THE DIFFERENCE!!

When I made this second state complaint, as soon as the school knew of it they mailed the consent forms to me agreeing to do the evaluation. I even had a lady from school calling and practically begging to bring it to my house for me to sign it!!
The state then told me they would be combining the 2 complaints I made. They told me they would look into it in great detail, interviewing me, getting documents from me. They didn't do any of this. I sent the state 64 documents and telling them in order the events that happened. Phone calls, meetings, what was said, everything. And the results of the state complaint is just a big joke. They did not even mention that the school did anything wrong!!

 

[sisymay]

I had to make this into 2 posts, all this on one was too long!
OK NOW TO ANSWER YOUR QUESTIONS!!
You stated something about state looking into SST process which is out of bounds from the special ed process. This is true, which makes me wonder WHY they even did this? Since they are only suppose to look into special ed issues, was it even LEGAL for them to look into the SST process? I guess I'm glad they did, even though it did no good. It seems to me the state is confused about all of it.
At the time the SST did their assesment, no one ever said she qualified to be referred. There was a 'check off' box stating 'not referred to special education at this time' and the only reason they said she did not qualify is because the SST assesment scores did not show a 20 point 'discrepancy'. I know for a special education evaluation, they are suppose to use more than this to determine eligibility, but I'm not sure what the SST is 'suppose' to use to determine 'eligibility' to the special education 'process' before the child is actually determined 'eligible' for special education services.
When they told me all this, not one time did they tell me that I as a parent can bypass the SST process and request for the special education department to do thier evaluation to see if she qualifies for special ed services. This is also happening in schools across the country. Parents don't know about IDEA laws, and schools sure ain't gonna tell them.
Can you start to see now why I and many other parents think this SST process IS the special education process? The school does NOT tell you there is a difference because they want to keep you in the dark and NOT know about the special education process you SHOULD have access to.

You wrote-One of the other things you bring up is the parent right to demand evaluation. I use “demand’ give the context that you say parents can override a district’s refusal to evaluate. This is the advice I give districts, but I don’t believe the override clause is in the federal regulations.

Let me try to clarify what I wrote about this. I don't remember saying 'demand'. What I meant by the parents can override a districts refusal to evaluate. I didn't mean this. I meant that a parent can override the SST process and override the SST evaluation by going ahead and request for the special education department to do THIER evaluation. I did not mean that parents can 'override' the special education's evaluation. No, that's what a parent WANTS to do is have the special education evaluation done, and NOT the SST assesment. A child does NOT have to go through the SST process at all in order to have the evaluation done by the special ed dept to see if the child qualifies for special ed services. Now, if the child is ALREADY in SST process, the SST is suppose to 'refer' the child to special education if they think it's necessary. BUT, if the PARENT requests the special education dept to do their evaluation to see if the child qualifies for special education services, and does NOT make this request to the SST process, then the SST process is IRRELEVANT.
I know the 'override' clause is not in the federal regulations. I was not talking about overriding the 'federal' evaluation which is the one the special education dept. does to see if the child qualifies for special education services. I was talking about overriding the SST evaluation. Which parents CAN do if they want the school to do the evaluation by the special ed dept.

You wrote-Some states might have it in their codes because states can go beyond what the feds say,

I have always been told that states CAN'T go beyond what the feds say. The states education laws can NOT be more restrictive than the federal IDEA laws. I have had more than one educational lawyer tell me this.

I didn't want all this mess, and I didn't want it to be this way. But they started it, they continue to be ugly with me and I am not going to back down and let them run all over me.
THANK YOU SO MUCH FOR WRITING TO ME! IF YOU GET TIRED AND DON'T WANT TO CONTINUE I WILL UNDERSTAND! I KNOW THIS IS A LOT OF MESS!!

 

[notsmartmark]

There really isn’t much I can add. But, as always, I’ll try.

I mean that states can add requirements and services. For example, if the feds say that evaluations need to be completed in 45 days, states can require districts to complete evaluations in 44 days, but states cannot say districts will complete them in 46 days. That is what I meant to say.

I cannot guess to determine if there was malice in you District’s decisions, but not all districts initiated the SST process to avoid special education referrals. Reduce, yes. The reason you are hearing about around the country is that this is the advice of the feds. The last federal reauthorization now allows districts to use a percentage of their special education budgets on pre-referral activities. So, if you think it’s confusing now, just wait. The other add I have is I am confused about the laws that guide special education, and I have spent the majority of the last 15 years with them as my primary focus, and I develop programs to assist districts in trying to wade through the jungle, and I’m confused most days.

My view is I have yet to meet a parent who doesn’t love their child, no matter their place or position. It’s just at times history can cause some choice making that doesn’t best serve a child. And on the other hand, most of us who went into education went into it for honorable reasons. It’s just our history and the demands can cause some choice making that doesn’t best serve the child.

Keep the focus of the prize, your daughter. Don’t let individuals or a process step on you. But no matter who is wearing the footprint, someone at, blah, blah, blah. I’ve said it; you’ve heard it.

And back to your initial post. You have raised very valid concerns. You can access a series of complaint processes, Due Process or an OCR complaint. I still think your most valid complaint, in a legal sense, is that they should have known after two years. And, I still think would be a challenge to win. But, I’m even more sure that someone else versed in special education law could take a different view.

Even more than anything, I’ll continue to find it very confusing to advise schools and parents, and anyone who tells you differently is full of it.