Clarification of SAU’s obligation to refer students to special education

ADMINISTRATIVE LETTER NO: 85
POLICY CODE: IHBA

As the result of a recent complaint against a school administrative unit (SAU) for not referring a student receiving general education interventions to special education, the Department is issuing this Administrative Letter to clarify an SAU’s Child Find responsibilities. This is a clarification of existing requirements, not a description of new requirements.

Even though an SAU has an obligation to provide general education interventions to students experiencing difficulties in school, the SAU also must be aware that such a student may need to be referred to special education if the interventions prove to be insufficient or unsuccessful.

Maine Unified Special Education Regulations (MUSER) §III.1 requires that all SAUs have in place a program for implementation of general education interventions for students not progressing toward meeting the content standards of the parameters for essential instruction and graduation requirements.  MUSER §III.2 sets out certain components that all such interventions must contain.  Among those components is the requirement that a team review the student’s progress no later than 60 school days after the start of the interventions and approximately every 30 school days thereafter “to determine if modifications to the general education interventions are needed and/or if a referral to special education is indicated.”  MUSER §III.2(i). This requirement is consistent with OSEP’s directive that local educational agencies “have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI [general education intervention] strategy.”  Memorandum to: State Directors of Special Education, 56 IDELR 50 (OSEP, Jan. 21, 2011).  A recent complaint investigation has raised the issue of when a referral to special education of a student receiving general education interventions is indicated. (The complaint investigation report can be found at: http://www.maine.gov/education/speced/dueprocess/12038CCIR.doc.)

Initially, it must be noted that the SAU’s obligation to make a referral is independent of the parents’ right to make such a referral at any time while the SAU is engaged in implementing general education interventions.  MUSER §III.3(a).  The fact that the parents have the right to request the referral, however, does not relieve the SAU of its Child Find obligation.  MUSER §IV.2.E(2) provides for all staff, including regular education staff members, to make such referrals “after completion of the [general education] intervention process.”  Any question about whether the general education intervention process has in fact been completed when the SAU receives such a referral from an SAU staff member must be resolved at a team meeting as described in MUSER §III.2(i).  The receipt of a staff member referral requires that at least one special education staff member be a part of that team.  Special education staff, even in the absence of a referral from regular education staff, must make the referral once they become aware of circumstances that give rise to that duty.

The SAU’s duty to make the referral to special education, and to conclude that the general education intervention process has been completed, arises once it becomes sufficiently clear that the interventions are not being successful.  The determination of when it has become sufficiently clear that the interventions are not being successful will necessarily be made on a case-by-case basis, taking into account the severity of the student’s presenting issues (and any relevant diagnoses the student has received), the length of time that the interventions have been implemented, and the degree to which the student has shown progress, lack of progress or deterioration.   Loss of significant school time, whether due to removal by the school or refusal of interventions by the student, is another indicator that a referral must be considered.

In the recent complaint investigation, the general education interventions initiated by the SAU over a period of seven months and directed at the behavioral issues presented by a student diagnosed with ADHD were seen to be ineffective in preventing the student from engaging in increasingly challenging and dangerous behavior. A series of such incidents, several of which resulted in the student being sent home from school, culminated in an incident where the student engaged in serious self-injurious behavior.  On that day, the student was sent home and directed not to return unless accompanied by a note from a doctor stating that the student was not a safety risk.  The Department concluded that by the time of that incident, there was clear indication that the interventions being implemented by the SAU were not successful, thus triggering the SAU’s obligation to refer the student for special education evaluation.

One of the SAU’s responses to the Child Find allegation was that the parents, besides having never formally requested evaluation for special education eligibility, had in previous years resisted suggestions that the student be evaluated.  Please note that the fact that parents may have previously expressed reluctance to have a student considered for eligibility also does not relieve the SAU of its obligation to refer the student; while parents ultimately have the authority to withhold consent for evaluation, the SAU is nevertheless required to convene a meeting at which the student’s current performance and need for further evaluation can be discussed, so that the parents’ decision is an informed one.

All special education administrators must ensure that all special education personnel working under their supervision are made aware of the contents of this Administrative Letter, and each SAU’s Child Find policy must contain provisions fully consistent with the foregoing requirements.

Any questions regarding this Administrative Letter should be submitted to the Due Process Office by e-mail at susan.parks@maine.gov or by phone at 624-6644.

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