Eligibility: SHORTENED SCHOOL DAY WITHOUT 504 or IEP, NO FAPE?

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Elizabeth:  A school shortened a student’s school day to five hours, with the first two hours spent calming down doing art for a student with anxiety. (Student was therefore only getting 3 hours of instruction of which, school allows the student to leave class whenever she needs to due to anxiety and wear ear buds to listen to music or text her mom during class time due to anxiety.) When the school was asked for a formal 504/IEP evaluation, the school stated, the student “wouldn’t qualify for either of those and it wouldn’t change anything because we are already giving her all the accommodations we can, plus we can get in trouble legally for giving her a shortened school day.” Obviously, we are aware the school is in the wrong and needs to formally evaluate the student to determine if she qualifies for a 504 or IEP; however, what steps can be taken in regards for their already, knowingly inappropriate actions short of a state complaint? Can anything be done to ensure the student’s needs are met within a normal length school day as well as recommendations for all the hours she has missed due to this informal arrangement?

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Elizabeth –

This sounds like a tough situation. Unfortunately there’s not much you can do to hold the school accountable, short of a state complaint or due process hearing.

Has the school been formally asked to conduct an initial evaluation for eligibility under IDEA? Are there any state laws that pertain to how or how long the school has to act on such a request?

You or the parent (I’m assuming that you’re not) can file a state complaint alleging that the school lapsed in their “child find” duty. The case would be stronger if a formal request for evaluation was made. If the school has violated any state special education provisions, that can also be included in the complaint. Unfortunately I don’t think this route would be successful in gaining compensatory time for the child.

The parent can also opt to request a due process hearing, with essentially the same allegations and arguing that they denied his/her child a free appropriate public education. A hearing is more likely to lead compensatory time, but is certainly no guarantee.

If the parent’s main objective it to obtain an IEP or 504 plan for his/her child (rather than gaining time back), there are certainly other options.

“From Emotions to Advocacy” is a great resource that can help you/the parent prepare for the worst (complaint or hearing), with the hope that that point is never reached – http://www.wrightslaw.com/store/feta2.sm.store.html

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