I agree with Christie, you are going to need Debi's input here. I am quite well versed with Part C, but havent' had to do anything with Part B yet. So I'm going to throw out my thoughts and maybe they'll help?
For what it's worth though, this is where I find a problem with what they're doing. Your daughter has Down Syndrome, which is an "established condition" that makes her eligible for special education. In Michigan, children with DS fall under POHI (Physically or Otherwise Health Impaired) - no mention of mental retardation there. Does Joy have hypotonia (low tone) Is Joy physically keeping up with her peers? Are her fine and gross motor skills delayed? Is her language age appropriate? Is it understandable? Hypotonia is an "other health impairment" which makes speech, fine and gross motor skills difficult to achieve. Does she have the lax ligaments typical of kids with DS? Does she wear orthotics? (orthopedic impairment).
This is how the IDEA regs define a child with a disability:
300.7 Child with a Disability
(a) General.
(1) As used in this part, the term child with a disability means a child evaluated in accordance with §§300.530-300.536 as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance (hereafter referred to as emotional disturbance), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.
My understanding is that the district cannot use any one sole factor in determining disability, pay special attention to (f) and (g) and (h), which I bolded:
300.532 Evaluation Procedures:
Each public agency shall ensure, at a minimum, that the following requirements are met:
(a)
(1) Tests and other evaluation materials used to assess a child under Part B of the Act—
(i) Are selected and administered so as not to be discriminatory on a racial or cultural basis; and
(ii) Are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so; and
(2) Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills.
(b) A variety of assessment tools and strategies are used to gather relevant functional and developmental information about the child, including information provided by the parent, and information related to enabling the child to be involved in and progress in the general curriculum (or for a preschool child, to participate in appropriate activities), that may assist in determining—
(1) Whether the child is a child with a disability under §300.7; and
(2) The content of the child’s IEP.
(c)
(1) Any standardized tests that are given to a child—
(i) Have been validated for the specific purpose for which they are used; and
(ii) Are administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the tests.
(2) If an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.
(d) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.
(e) Tests are selected and administered so as best to ensure that if a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
(f) No single procedure is used as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child.
(g) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.
(h) In evaluating each child with a disability under §§300.531-300.536, the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. (i) The public agency uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(j) The public agency uses assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child.
(Authority: 20 U.S.C. 1412(a)(6)(B), 1414(b)(2) and (3))
I would ask that the school district give you prior written notice of their intent to deny special educations services and then invoke the stay put clause so that she has to stay in special ed until this is figured out. (The way I understand this you will have to file a complaint to use the stay put clause) This is what IDEA says about stay put
300.514 Child's status during proceedings(a) Except as provided in §300.526, during the pendency of any administrative or judicial proceeding regarding a complaint under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
(b) If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.
(c) If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a
change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.
Other random thoughts, what about an independent eval? You have the right to request one. Anyway, hope this helps, and I'm sorry to take so long to respond but had to do some looking on this one
BUT geeeez here in New Jersey, my now 14 year old daughter, not DS wasn't tested for IQ till she was past Kindy and was reading, Hmmm just wondering what type of tests did your Joy have??
