Bridges4Kids Logo

 
Home ] What's New ] Contact Us ] About Us ] Links ] Search ] Glossaries ] Contact Legislators ] Reviews ] Downloads ] Disabilities ] IDEA ] Special Education ] Medicaid/SSI ] Childcare/Respite ] Wraparound ] Insurance ] PAC/SEAC ] Ed Reform ] Literacy ] Community Schools ] Children At-Risk ] Section 504 ] School Climate/Bullying ] Parenting/Adoption ] Home Schooling ] Community Living ] Health & Safety ] Summer Camp ] Kids & Teens ] College/Financial Aid ] Non-Public & Other Schools ] Legal Research ] Court Cases ] Juvenile Justice ] Advocacy ] Child Protective Services ] Statistics ] Legislation ] Ask the Attorney ]
 
 Where to find help for a child in Michigan, Anywhere in the U.S., or Canada
 
Bridges4Kids is now on Facebook. Follow us today!
 
Last Updated: 10/31/2017
 

 Ask the Attorney with John Brower, J.D.

 

QUESTION:  What is the timeline in the Michigan for a re-evaluation (not initial evaluation) to take place? In addition, should I receive copies of all evaluation reports before the IEP meeting?
 
ANSWER:  Before Michigan rescinded many of its special education rules in favor of following the less demanding federal rules, this would have been an easier question to answer. Now the answer to your question must be pieced together using both the new Michigan rules and the Code of Federal Regulations (CFR) that implement the IDEA statute Congress passed. However, as is the case whenever you are dealing any rules, they are subject to various interpretations. Therefore, my opinion may not agree with the interpretation of your school’s attorney.
 
From my experience, it is also not unusual for schools to violate some of IDEA’s timelines. This is generally the result of carelessness or a lack of understanding the rules. Parents sometimes put great emphasis on what in reality may be minor rule violations. However, when a due process hearing officer or a judge looks at violations of IDEA’s procedural rules, the key question they ask is – What educational opportunity did the child lose due to the school failing to follow the proper procedures and What opportunity to meaningfully participate in their child’s educational planning process did the parent lose due to the school failing to follow proper procedures?
 
While Michigan has specific timelines (30 school days) from consent for an initial evaluation to the creation of the initial IEP, the rules are silent as to time lines for reevaluations. The reason is that when you are dealing with a reevaluation there is already an IEP already in place, and under the current rules, IEPs must be reviewed annually. At the same time, the rules require that the IEP Team must meet to consider the results of any reevaluation. It does not matter if the reevaluation came about due to IDEA’s current requirement for a reevaluation every three years, or by the parents obtaining a private independent evaluation (IEE), or because the child’s parents or teacher saw a need to request a reevaluation before the three years had expired.
 
As a result of the rules, as far as timelines go, there are two classes of reevaluations. Those related to the annual (or three year) review of an IEP and those reevaluations that are completed at other times. The time requirement to complete reevaluations related to annual IEP or the three-year rule resolves itself, as the new IEP must be reviewed on or before its one-year anniversary date. Therefore, any reevaluations that would affect a new IEP must be completed before the IEP Team meets. If the IEP is not reviewed annually, then the school takes a chance that a parent may make a claim that the lack of a current IEP resulted in a denial of a FAPE. If such a claim is successful, among other relief, the student should be eligible for an award of compensatory educational services.
 
On the other hand, if a parent presents an independent evaluation to the school to use to change an IEP or the school has completed a reevaluation requested by the parent or teacher that will change a current IEP before it expires, in the absence of a specific time line in the rules, the general standard is a “reasonable” amount of time. Of course, your definition and the schools may vary as to what is reasonable. That is why IDEA provides that issues like this can be resolved via a request for an investigation made to the ISD using the complaint process, or via a request for a due process hearing to address a claimed denial of a FAPE.
 
You also asked as to the availability to parents of any school generated evaluation reports in advance of an IEP Team meeting. First, all evaluations must be done before the IEP Team meets. Next, for a parent to make informed decisions and meaningfully participating in the decisions regarding their child’s education, I argue that the parent needs to be provided with the evaluation reports (34 CFR §300.534(a)(2)) and assistance in understanding the report in advance of any meeting. I do know it is common practice for school districts to provide the reports at the start of an IEP Team meeting. I find this unacceptable, but some clients do not mind to take the time at the beginning to review the reports. My problem with this procedure is that not all the evaluators are generally present when the report is presented so there is no chance for a parent to directly question them. Next, I find it impossible for most parents to read the actual report and actively participate in the Team discussions at the same time.
 
What I advise my clients to do, is to send a letter or note to the school stating that they need copies of the reports in advance of any meeting so the parents, and if needed other professionals including me, can review the reports in advance of the meeting. I think that having copies of the reports available for parent pick-up at the school at least three business days before any IEP Team meeting is “reasonable” and longer if having a busy outside expert review the reports. A few times this request has been ignored, but when the parent then sends a facsimile three days before the meeting canceling it due to the school district’s failure to provide copies of the evaluations so that the parent can meaningfully participate in the process, that usually solves that problem.
 
Finally, as a general comment, whenever a parent feels that a reasonable time has passed and the school has not taken some action they requested in writing, I recommend they restate in a letter what they requested and when. Further, the parent should state that in the parent’s opinion their child is being denied a FAPE until the requested action takes place.
 
Hope this helps your understanding.
 
John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com

Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

Copyrighted Material - All Rights Reserved  - May Not Be Reproduced Without Written Permission

 

© 2002-2017 Bridges4Kids