March 2023: 

The MLO Minute: “Staffing Issues: Services Delayed Are Services Denied” 

By Michael Connolly, Esq., Supervising Partner of MLO’s Special Education Department, and Rachel Rosenberg, Esq., MLO Special Education attorney — 

With many school districts facing staffing shortages, particularly with related services providers such as speech and language therapists, occupational therapists, and physical therapists, we have received calls about delays in initiating evaluations and/or services.  While staffing shortages can certainly create legitimate difficulties for school districts, staffing concerns are not a legitimate basis for delaying an evaluation or services under the Individuals with Disabilities Education Act (“IDEA”).

Special education regulations place an ongoing child find obligation on school districts to not only identify students not yet eligible for special education, but to identify the ever-changing needs of those students who are already identified as eligible.  Identifying a student’s eligibility and/or needs can require assessments by a variety of different individuals including school psychologists, speech, occupational, and physical therapists, as well as a host of other related services providers.  If in-house district staff is not available to complete such an assessment in a reasonable amount of time, then the school district may need to contract with an outside provider to ensure the assessment is completed timely.

Likewise, where a student requires a particular support or service, e.g., speech and language therapy, staffing issues, while understandable, are not a valid reason to delay services.  Again, the IDEA requires that appropriate IEPs be in place for eligible students at the start of each school year, and the supports or services in those IEPs be modified throughout the school year as may be necessary to ensure that students receive a Free and Appropriate Public Education (“FAPE”).  Similar to the evaluation requirements described above, where a district does not have the in-house staff to provide the support or service needed, the district may have to contract with an outside provider to ensure that the support or service is timely provided.

Where a school district fails to timely evaluate a student or timely provide a student with a support of service that the student requires, such failure may constitute a denial of FAPE entitling the student to compensatory education.  If you have questions about your child’s specific situation, we offer free initial consultations in our special education cases, and most cases are handled without charge to families for hourly fees. Please do not hesitate to contact the attorneys at McAndrews, Mehalick, Connolly, Hulse & Ryan, P.C. by clicking here or by calling any of our numbers noted on our website!