OSEP says that RTI can not be used to delay or deny evaluation under the IDEA

In a recently issued policy letter, the federal Office of Special Education Programs (OSEP) advised that a response-to-intervention (RTI) process cannot delay the initial evaluation for special education services of a child suspected of having a disability. The federal special education regulations allow a parent to request an evaluation at any time to determine whether her child is a child with a disability. Apparently, schools have been delaying or denying the requests to evaluate pointing to the use of RTI procedures as justification. OSEP concludes that if a parent requests an evaluation and the district agrees that the child may be eligible for special education, the district must evaluate the child. If the district denies the request for the evaluation, the district must provide notice to the parent explaining why they refuse to evaluate and the information that was used as a basis for the decision. The parent can then challenge the refusal to evaluate through the impartial hearing process.

8th Circuit finds that student with adhd, bipolar disorder and conduct disorder is eligible under IDEA

Hansen v. Republic R-III Sch. Dist. (8th Cir., Jan. 21, 2011): This is one of the latest in the rather familiar category of cases addressing whether a child who engages in unacceptable conduct should be classified and provided with special education services. Here, the hearing officer said no, the district court said yes and the 8th Circuit Court of Appeals agreed with the District Court. For more details, see this article on the NSBA blog.

9th Circuit affirms child find violation

COMPTON UNIFIED SCHOOL DISTRICT v. ADDISON, 07-55751 (9th Cir. 3-22-2010): The child at issue received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor attributed Addison's poor performance to common "transitional year" difficulties. Remarkably, the counselor did not consider it atypical for a ninth-grader to perform at a fourth-grade level. The District Court held in favor of the parent, finding that the district should have classified the child. The District appealed arguing that the IDEA did not provide for the right to due process under these circumstances–i.e. where a district did not propose or refuse to initiate a change regarding a student's identification, assessment, or placement. The Court affirmed noting that the IDEA must be read as a whole to avoid absurd results. Citing to Forest Grove, the Court explained that a "reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress' acknowledgment of the paramount importance of properly identifying each child eligible for services." Finally, the Court noted that “§1415(b)(6)(A) states that a party may present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child."

Adverse impact upon educational performance entails more than academics

SRO 08-112: In this reimbursement case, SRO Paul Kelly reaffirmed the proposition earlier stated in SRO 07-086 that adverse impact on educational performance entails more than just academic performance.

While consideration of a student's eligibility for special education and related
services should not be limited to a student's academic achievement (34 C.F.R. § 300.101[c]; 8 NYCRR 200.4[c][5]; see Corchado, 86 F. Supp. 2d at 176), evidence of psychological difficulties, considered in isolation, will not itself establish a student's eligibly for classification as a student with an emotional disturbance (N.C., 473 F. Supp. 2d at 546). Moreover, as noted by the U.S. Department of Education's Office of Special Education Programs, "the term 'educational performance' as used in the IDEA and its implementing regulations is not limited to academic performance" and whether an impairment adversely affects educational performance "must be determined on a case-by-case basis, depending on the unique needs of a particular child and not based only on discrepancies in age or grade performance in academic subject areas"
(Letter to Clarke, 48 IDELR 77).