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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Before Michigan rescinded many of its special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
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www.michedlawcenter.com
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