Common Legal Mistakes Parents of Children with Special Education Needs Make, But Can Avoid: Part I

Published on March 7, 2009 by Jennifer Laviano

I hope you never have to get there, but there may come a time in your child’s education where you have a serious enough disagreement with your school district that you have to request a Mediation or initiate a Due Process Hearing. Parents are required to cooperate with their school districts in developing IEPs for their children, but there are a number of common mistakes you can make which will make you look like you aren’t.

Now, I know what you’re saying: “Jen, we’ve cooperated with them for years and now my son can’t read!” or “they have had all of this time to try to evaluate her and now I am the one who has to be patient?”

Let me just say this:  I didn’t say it was fair.

Unfortunately, prevailing in a legal dispute against your school district is very difficult, so if you can avoid some common traps, why not just avoid them? If you’ve already made this mistake, don’t give up hope, but do try to rectify the situation. If you haven’t made this mistake, DON’T, since it could lose your case for you down the road.

MISTAKE #1:  Refusing permission for the school district to evaluate your child.

There is a whole body of legal precedent which says that Parents who do this forfeit their right to reimbursement of out of district services or placements. This has been held even where it might pose harm to the child to be tested. If your district requests permission to evaluate your child, give it.

I am not saying that you should simply sign anything that they put in front of you; you obviously want to make sure that any consent you are giving is informed. But trust me, a parent refusing permission for testing is the easiest way for a school district to get “off the hook” for a denial of a Free and Appropriate Public Education (FAPE). The school will be able to respond that they would have offered an appropriate program if only they’d been able to get all the necessary information.

Remember, this applies not just to consent to evaluate in general, but consent for particular instruments and tests the school has requested.  If you are going to fight your district over testing, wait until they’ve had their chance, then ask for an Independent Educational Evaluation (IEE). Otherwise, you’re giving them a “get out of jail free” card!

8 Responses to Common Legal Mistakes Parents of Children with Special Education Needs Make, But Can Avoid: Part I

  1. Rochelle Dolim
    August 24th, 2009 | 7:23 pm

    What about when there have been years of prexisting documentation the school is supposed to consider? If they can ask us to waive evaluations based on prior documentation, why don’t parents/students have that same right?

  2. Kelly
    October 29th, 2010 | 8:37 pm

    Sorry I realize this is an old post, but I am having the exact OPPOSITE problem. I have been pursuing evaluations for my son for 2 years and have been refused every time. I even had a script from his MD requesting it. He has a 504, but no IEP. What are the regulations regarding denying testing? Is there criteria that needs to be met before this can be done? I know the expense involved with the testing and know that is why it is being refused. He needs psychiatric and educational testing.

  3. NIck
    March 5th, 2013 | 1:37 pm

    Then I have a question, If I have put the school district on notice that I have commisioned a non-school district third party provider to conduct the need assessments/evalution, but will provide the results to them does that negate the requirement that they assess the student?

    I have yet to find in the US Statutes at Large not the Commonwealth of PA legislative acts that say only the school district can preform the needed evaluations.

    Addtionally in the past the school district has tried to get us to allow an evaluatation based on the Conner’s scale which was originally designed to screen kids for inclusion in drug trials, and when I asked them about it they failed to meet thier ethical standards of truthfulness.

  4. Jennifer Laviano
    March 12th, 2013 | 10:15 pm

    Nick, absolutely parents can obtain their own testing and then share it with the district, and then the district must consider those results. My point is that you shouldn’t prevent the district from getting information they say they need to program, because it will always come back against the parents. It’s one of those examples of something which is legally permissible (refusing testing) but not necessarily wise. Generally, letting a district do their testing then exercising your right to an IEE is the best way to go, but the facts of any individual child’s case may change the considerations. Hope this helps!

  5. NIck
    May 7th, 2013 | 12:20 pm

    Here is an interesting twist to evaluations/reevaluations. Due process procedures allow for consent override. However what is interesting is that in order to override a parents’ consent, and thus diminish their constitutionally protected parental rights the hearing officer must make a parental fitness determination, which is consistent with Supreme Court case precedent, e.g. Parham v. Jr or Troxler. But what shocked me was the fact that a hearing officer here in PA stated in his opine that he cannot make a parental fitness determination. If that is so then it would seem that he does not have the authority nor the jurisdiction to override a fit parents decisions. This would seem to create a quandary with the statute and Supreme Court case law precedent. I am curious as to what others think of this

  6. Jennifer Laviano
    May 7th, 2013 | 12:40 pm

    Very, very interesting question. I have never had it come up before, but I do have a question…is there a reason that you’re advising not consenting to the evaluation?

  7. NIck
    May 7th, 2013 | 1:05 pm

    not particular, this is based on my own experiance, where the school district in its wisdom decided to utilize youth and family services to pursue thier own adgenda, instead of fulfilling the INFORMED consent requirements, such as procedures to be done, alternates, benifits, or harm to what thier are requesting. For example, they chose to utilize the ADDES-3, but failed to tell me that peer review indicated that there was validity and accuracy concerns and that the reviewer recommended not to use, or the fact that they chose an assessment that produced flawed information and resulted in a flawed evaluation report in which chossen interventions were not appropriot. Thus I question every thing the school wants to due.

  8. Jennifer Laviano
    May 7th, 2013 | 2:06 pm

    It’s so easy to become distrustful of your school when they don’t give you information like that. I absolutely understand where you’re coming from. Generally, though, I still think the best way to refute bad testing is through good testing, and that’s what the IEE is there for. Your argument is definitely interesting though! If you want to bounce more of these ideas off of other parents, please join our new free website, http://www.yourspecialeducationrights.com. It’s a great video-based site dedicated to parents’ rights, and we have a new and growing social network component. Love to have you! Best of luck and thanks for reading.

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