When Do I Respond to Parent’s Request for FIE?

1. When Do I Respond to Parent’s Request for FIE? Eric G. Rodriguez

2. Parental Consent We cannot conduct an initial evaluation without first obtaining informed parental consent. 34 CFR 300.300(a)(1); see also 34 CFR 300.9 (describing informed consent) Must be completed within 60 days of receiving parental consent, or within the timeframe established by the State. 34 CFR 300.301(c)(1) In Texas, we like to do things our own way…

3. SB 816 –Timeline for Completion of Report of Initial Special Education Evaluation (in Texas) Summary: A written report of a full individual and initial evaluation shall be completed not later than the 45th school day following the date on which the school district receives written consent for the evaluation, signed by the student’s parent or legal guardian. See Tex. Educ. Code 29.004(a)(1) Absence Exception: If child is absent 3+ days within the 45 day window, then those days are added to the initial 45 day timeline. See Tex. Educ. Code 29.004(a)(1) The absence exception does not apply to students under 5 by Sept. 1 of the school year and not enrolled in public school and for students enrolled in private or home school setting. See Tex. Educ. Code 29.004(a)(2)

4. SB 816 – Continued School Break Exceptions: (1) If a school district receives written consent for a full individual and initial evaluation of a student at least 35 but less than 45 school days before the last day of instruction of the school year, the evaluation and report must be completed and provided to the parent not later than June 30. The student's ARD committee shall meet not later than the 15th school day of the following school year to consider the evaluation. See Tex. Educ. Code 29.004(a-1) (2) If written consent is received less than 35 school days before the last day of instruction of the school year or if the student is absent from school during that period on three or more days, the absence exception applies to the date the written report of the full individual and initial evaluation is required. See Tex. Educ. 29.004(a-1) In other words, report must be completed within 45 school days, or 45 school days plus the days absent, which means the report will likely be completed in the beginning of the following school year.

5. SB 816 – Continued:Response Required! Response required: If a parent or legal guardian makes a written request to the special education director or to a district administrative employee for a full individual and initial evaluation, the district must, not later than the 15th school day after receipt of the request: Provide the parent/guardian an opportunity to give written consent for the evaluation; or Refuse to provide the evaluation and provide the parent/guardian with notice of procedural safeguards See Tex. Educ. 29.004(c)

6. What does this mean? • Parent emails a request for an initial evaluation to Director of Special Education or to an administrative employee • Timeline to respond triggered • Parent emails a request to the assistant principal who oversees discipline • Timeline to respond triggered • Parent drops off a hand-written note requesting evaluation to the school’s Assistant Superintendent for Human Resources (they are close friends) • Timeline to respond triggered

7. You’re kidding me, right? • Parent sends email to the student’s general education teacher • Timeline probably not triggered. However, teacher must refer the request to the appropriate administrator as soon as possible. The real issue here is whether any delay to evaluate will result in a violation of the IDEA as a result of what the teacher and administrator do with the request. • Parent comes in to assistant principal’s office after lunch and drops off request for evaluation on a cocktail napkin • Timeline probably triggered. But that seems rather tacky doesn’t it?

8. Waiting for Mom to Come into Your Office • Parent calls the Principal on the phone and asks for an evaluation • Timeline probably not triggered at the moment based on a strict reading of Tex. Educ. Code 29.004(c) (requiring “written request”). But more important question, what does Principal do with the oral request? • Don’t sit on it. Don’t wait for parent to come in. Document the conversation and send to the appropriate special education administrator for further action. • The Principal could operate as if the timeline to respond is running and seek assistance from an appropriate special education administrator right away to determine next steps.

9. So Where are We? We must give meaning to the statute. It specifies “written request” by parent or legal guardian for a full individual and initial evaluation But wait! Remember what the parent is asking for – special education services for her child. So taking a verbal request and reducing it to a writing you create is reasonable. Treating that as if the timeline is triggered to give you a deadline to respond is also reasonable. You may also invite the parent to come in right away and talk about it, and she writes the request on your legal pad. If she does that, then you have a “written request” and your clock actually starts at that point. The point behind this is to be careful not to unreasonably delay a response to a parent’s request for an evaluation.

10. Final Thoughts Train your campus administrators Train all administrators – the statute essentially provides that a written request to trigger the timeline to respond is effective upon delivery of the request to the Director of SE or “to a district administrative employee.” Think of how many “administrative employees” you have in your District. Last parting thought: training.

11. Thanks! Contact: Eric G. Rodriguez Walsh, Anderson, Gallegos, Green & Treviño, P.C. 100 N.E. Loop 410, Ste. 900 San Antonio, TX 78216 (210) 979-6633 erodriguez@wabsa.com The information in this handout was created by Walsh, Anderson, Gallegos, Green & Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.