By: Emma Freeburg, ACDL Legal Intern (Summer 2021)*

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This is the final blog post in our series discussing school discipline of students with disabilities. Today’s blog post provides tips on how to help your child avoid school discipline in the first place.

Students are disciplined when they engage in inappropriate behaviors at school. For students with disabilities, these behaviors are often the result of educational frustrations. The way to reduce these frustrations is to first identify your child’s needs and then take necessary steps to ensure those needs are being met at school. These necessary steps may include requesting that your child be evaluated for special education eligibility, actively participating in the creation of your child’s Individualized Education Program (IEP) or 504 Plan if they are found eligible, and then periodically reviewing and updating those plans to ensure they continue to address your child’s needs.

Request Evaluations or Reevaluations

If you notice your child is struggling in school and believe these struggles may be a result of their disability, you have the option to request that your child be evaluated for special education eligibility under the Individuals with Disabilities Education Act (IDEA) and/or Section 504 of the Rehabilitation Act. You can request an evaluation by sending a letter to the school district’s or charter’s Director of Special Education.

Examples of specific types of evaluations you might request include:

• A comprehensive psychoeducational evaluation;
• An occupational therapy evaluation (which can examine both fine-motor needs as well as sensory needs);
• A speech and language evaluation;
• A social/emotional evaluation;
• An autism evaluation; and
• A Functional Behavior Assessment.

Getting your child evaluated is important, both for determining special education eligibility and for identifying your child’s specific needs. Good evaluation data helps the team to develop an individualized plan that includes services, accommodations, modifications, and other supports to meet your child’s individual needs.

Troubleshooting When Your Request Is Ignored

Arizona law states that if a parent requests an evaluation, the school must “within a reasonable amount of time not to exceed 15 school days from the date it receives a parent’s written request for an evaluation, either begin the evaluation by reviewing existing data, or provide prior written notice refusing to conduct the requested evaluation.” [1]

• This means that the school can refuse to evaluate your child, as long as it does so in writing within 15 school days of your request.
• If the school does agree to evaluate your child, then it has 60 calendar days from the date it receives your written consent to conduct the evaluation. [2]
• This 60-day evaluation time period may be extended if both the school and the parent or guardian agrees in writing and it is in the best interest of the child. [3]
• If the school fails to respond within 15 school days to your written request for an evaluation, you can file a state complaint regarding this violation.

Troubleshooting When Your Request Is Denied

If the school does not suspect your child has a disability, it can refuse to conduct an evaluation/reevaluation.

If the school refuses to evaluate your child, you can take the following steps:

1. Read the district’s Prior Written Notice (PWN). Remember, if the school refuses to evaluate your child, it must tell you in writing by providing you with a PWN within 15 school days of your written request. The PWN should include an explanation of why the school is refusing to evaluate. If it does not, you can ask that details be provided so you can better understand the school’s position.
2. Call a meeting with the school to discuss face-to-face why you suspect your child has a disability and therefore needs to be evaluated. Under the Individuals with Disabilities Education Act (IDEA) schools must ensure that “all children with disabilities … who are in need of special education and related services, are identified, located, and evaluated.” [4]
3. If you have not already done so, provide the school with written evidence of your child’s disability. This could include medical records with your child’s diagnos(es), evaluation data from outside providers, information regarding hospitalization or outpatient treatment your child has received, evidence of your child’s eligibility for non-school-based services (such as enrollment with a behavioral health or developmental disabilities agency), or letters/statements of support from providers on your child’s team. This may persuade the school to conclude that an evaluation is necessary to determine whether your child is eligible for special education services under IDEA or Section 504.
4. Request mediation through the Arizona Department of Education (ADE) to help you and the school reach a mutually agreeable resolution. For more information on the mediation process, see this previous blog post.
5. Consider whether you want to file a due process complaint stating the school was wrong to refuse to evaluate. For more information on the due process system, see this previous blog post.

Troubleshooting When You Disagree with the School’s Evaluation

If the school evaluates but you disagree with the school’s evaluation, perhaps because the school’s evaluation finds that your child is not eligible under IDEA, or finds your child eligible under a disability category you do not agree with, or you believe the evaluation was not conducted properly or reliably, you have the option of requesting an Independent Educational Evaluation (IEE) at public expense. An IEE is like getting a second opinion.

When a parent requests an IEE at public expense, the school has two options:

• Agree to pay for the evaluation. If the school agrees to pay, it must provide the parent with information on where to obtain an independent evaluation and a list of the “agency criteria” for independent evaluators; or
• File a due process complaint within a reasonable time to prove that its evaluation is appropriate and an independent evaluation is not necessary.

Parents are limited to only one IEE at public expense for each school evaluation with which they disagree.

Actively Participate in the IEP Development

 Following the initial evaluation, if your child is found eligible under the IDEA, the school will hold an IEP meeting where the IEP team will develop an IEP for your child. The IEP will outline the services, accommodations, modifications, and other supplementary aids and services to be provided to your child. The IEP will also include annual goals for your child that are measurable and aligned to state standards. You will meet with your child’s IEP team at least once a year to review the IEP and make updates/adjustments based on your child’s performance and needs.

You can actively participate in the creation of the IEP by taking these steps:

• Brainstorm before the meeting what accommodations and services you believe your child will need to receive FAPE.
• Ask to see a draft of the IEP before the meeting so you can review any proposed services, goals, or accommodations and be prepared to share your thoughts on these proposals during the meeting.
• Speak up during the meeting and provide any recommendations you have on how to better address your child’s needs.
• After the meeting, ask for a draft copy of the IEP to take home and review before the school finalizes or “locks” the IEP.
  • Make sure everything that was discussed during the IEP meeting is accurately reflected in the IEP document.
  • Send an email or call the school if you see anything that needs to be corrected or changed in the IEP before it is finalized.

Under IDEA, “the parent of the child” must be included in the IEP Team. [5] This means that you have a legal right to be an equal participant in your child’s special education. Accordingly, to meaningfully participate in the IEP formulation process, the school must allow you to speak and make recommendations during the IEP meeting, and it should carefully consider your recommendations. However, when the school and parent disagree on something related to a child’s special education, the school has final decision-making authority. If you cannot come to a compromise with the school, you should make clear during the meeting that you disagree with the school’s decision, ask for your disagreement to be recorded in the IEP meeting notes, and state that you expect the school to provide its reasoning for rejecting your recommendations in a PWN. Then, after the meeting, you have the option to engage in dispute resolution.

Regularly Review the IEP

It is a good idea to review your child’s IEP often. Under IDEA, the IEP team is required to review the IEP periodically, but not less frequently than once a year, to determine if the student continues to be eligible and to review their progress.

IEP meetings are usually held once a year to review the student’s progress and determine if any adjustments need to be made to the IEP. If you believe your child needs different special education services than what is currently being provided, you do not have to wait until the annual IEP meeting to request a change. You have the option to send a written request to the school district’s or charter’s Director of Special Education asking for an IEP review meeting at any time. Under Arizona law, the review must occur within 45 school days of receipt of your request, at a mutually agreed upon date and time. [6]

Takeaways

• Parents are equal members of their child’s IEP team.
• Be proactive and involved.
• Staying on top of your child’s needs and progress can help prevent behaviors that result in discipline.
• Acting now can protect your child from potential future harm.

Now that we have reached the end of this series on school discipline of students with disabilities, test your understanding by taking this School Discipline Quiz.

For additional information and resources, please refer to this Self-Advocacy Guide available on ACDL’s website.

[1] A.A.C. R7-2-401 (E)(4)

[2] 34 C.F.R. § 300.301 (c)(1)

[3] A.A.C. R7-2-401 (E)(5)

[4] 34 C.F.R. § 300.111 (a)(1)

[5] 34 C.F.R. § 300.321 (a)(1)

[6] A.A.C. R7-2-401(G)(7)

 *Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with ACDL during the summer of 2021. This blog post has been reviewed by ACDL Legal Director Rose Daly-Rooney and ACDL Education Team Managing Attorney Amanda Glass.

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