Can the school exit my child from his/her IEP?

Can the school exit my child from special education?  A student cannot be exited from special education without an evaluation.  If the evaluation indicates the student is no longer in need of special education, then the parents may exercise their right to request an Independent Educational Evaluation (“IEE”).  Schools need not accept/agree with the independent evaluator’s conclusions, but the school must consider the conclusions.  If the Team still determines the student no longer qualifies for special education, then the school MUST issue a Prior Written Notice (“PWN”) and the student is exited from special education.  The parents may then invoke STAY-PUT and file a Due Process Complaint seeking a determination by an Administrative Law Judge (“ALJ”) whether the student still qualifies for special education.   The student “stays put” in special education under his/her last agreed-upon IEP until such determination by the ALJ, and through any appeals.

Kirsch-Goodwin & Kirsch, Arizona Special Education Lawyers

Eligibility Categories for special education (IEP) in Arizona

There ae 14 eligibility categories in Arizona for students to be considered for an IEP.  But remember, just having one of these disabilities does not automatically mean that the student qualifies for an IEP.  This is a 2-step process.  Having a disabilty that fits in one or more of these categories is the first step.  The second step is needing special education (specialized instruction).  If the MET (Multidisciplinary Evalution Team), by "consensus," does not find that the the student needs special education, the student may be able to qualify for a 504 Plan.  There are ways, however, for parents to challenge a school's determination that their child does not qualify for an IEP.  Whether the challenge will be successful depends on the particular facts and circumstances.

(i)    Autism ("A") 

(ii)   Developmental delay ("DD")

(iii)  Emotional disability ("ED")

(iv)  Hearing impairment ("HI")

(v)   Other health impairments ("OHI")

(vi)   Specific learning disability ("SLD")

(vii)  Mild, moderate or severe intellectual disability ("MID," "MOID," "SID")

(viii) Multiple disabilities ("MD")

(ix)    Multiple disabilities w/ severe sensory impairment ("MDSSI")(x)     Orthopedic impairment ("OI")

(xi)    Preschool severe delay ("PSD")

(xii)   Speech/language impairment ("SLI")

(xiii)  Traumatic brain injury ("TBI")

(xiv)  Visual impairment ("VI")

You can find the statute (the law), A.R.S. 15-761 at https://www.azleg.gov/ars/15/00761.htm.

Kirsch-Goodwin & Kirsch, Special Education Law Firm

What is PREDETERMINATION?

Predetermination is a procedural violation that deprives a student of a FAPE in those instances in which the school has made decisions placement without parental involvement.  Under the IDEA, parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child.  The IDEA requires that parents be members of any group that makes decision about the educational placement of a child. 34 C.F.R. § 300.327 (“each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.”) and 34 C.F.R. § 300.501(c)(1) (“Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child.”). Thus, all decisions are to be decided at MET meetings (for eligibility) and IEP meetings (for goals, services and supports, accommodations, placement, etc.). That means, at an IEP team meeting, all members of the team must have an open-mind about all decisions. A school must fairly and honestly consider the views of parents expressed in an IEP meeting.  While school officials may discuss a child's programming in advance of the IEP meeting, they may not arrive at an IEP meeting with a "take it or leave it" attitude, having already decided on the program to be offered.  A school that predetermines the child's program and does not consider the parents' requests with an open mind has denied the parents' right to participate in the IEP process.

To fulfill the goal of parental participation in the IEP process, a school is required to conduct a meaningful IEP meeting.  A parent has meaningfully participated in the development of an IEP when he or she is informed of their child's problems, attends the IEP meeting, expresses their disagreement regarding the IEP team's conclusion, and requests revisions in the IEP.  A school violates IDEA procedures if it independently develops an IEP, without meaningful parental participation, and then simply presents the IEP to the parent for ratification. However, an IEP need not conform to a parent's wishes in order to be sufficient or appropriate.  Rather, the school must be able to show that it provided parents with the opportunity to participate and that it considered the parents requests with an open-mind.

Kirsch-Goodwin & Kirsch, Special Education Lawyers