July 2023: 

The MLO Minute: “No Public or Charter School Can Deny A Child an IEP Before Conducting a Comprehensive Evaluation for Special Education” — 

By Heather Hulse, J.D., M.S., M.A., Senior Partner Scranton Office —

School districts and charter schools are legally obligated by the Federal law to evaluate and identify all students with special education needs in the school district or charter school. In fact, parents or guardians do not need to request such an evaluation. School districts and charter schools must have staff appropriately trained to recognize the possible signs for all special education classifications. This means that school staff should recognize when students are struggling cognitively, academically, socially, emotionally, behaviorally, developmentally, and in areas of communication, occupational therapy, and physical therapy. School staff must refer students who are only “reasonably suspected” to have a disability and need special education for a comprehensive evaluation.

Parents and guardians are often the first to notice suspected disabilities in their child and can request that their child be evaluated for special education needs. It is recommended that such requests are made in writing so there is no dispute of whether the request was made or when it was made. Once a parent or guardian requests a special education evaluation for their child, the school district or charter school must respond expeditiously. Unfortunately, there seems to be significant misunderstanding of many school district and charter school personnel about such legal obligations.

We have seen families improperly told by school staff that their child does not need an Individualized Education Program (IEP) when they request a special education evaluation. It is not appropriate for a teacher, guidance counselor, or administrator to make such a determination without a comprehensive evaluation of all of the child’s potential needs. Of course, the point of the evaluation is to make that determination.

Should a parent or guardian request an evaluation to determine whether their child has special education needs, school districts and charter schools have two possible options to respond. The school district or charter school may agree to the request and then issue a written consent form whereby the parent or guardian can provide permission to evaluate their child. Should a school district or charter school deny the request, a Prior Written Notice (PWN) indicating the school’s denial of the request for an evaluation and the reason(s) for the denial must be provided to the parent. This form provides the child’s parent or guardian with the opportunity to disapprove the denial and request mediation (which the school district or charter school could refuse) or a due process hearing.

Should the matter proceed to a due process hearing, for which the parent or guardian would need to file a formal complaint with the Office for Dispute Resolution, the matter would proceed before a Special Education Hearing Officer who would hear testimony and review exhibits then made a determination of whether the school district or charter school must evaluate the child. It is highly recommended to obtain a well qualified and experienced special education attorney to represent parents and guardians. Our office provides free consultations in all special education matters, and most matters are handled without charge to families for hourly fees. Families should not hesitate to reach out to us by CLICKING HERE or by calling any of our numbers on our website.