On July 31, 2000, (letter dated July 25, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Beloit School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.
Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff reviewed relevant portions of the child's pupil records and correspondence and materials from the district's legal counsel, the district and the complainant. Also, department staff interviewed the complainant, the child's mother, a district program support teacher, a special education teacher, and the district director of special education.
APPLICABLE STATUTES AND RULES:
34 CFR 300.500 General responsibility of public agencies; definitions.
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(2) Evaluation means procedures used in accordance with 300.530-300.536 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs;
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34 CFR 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section. (emphasis added)
(3) For the purposes of this part--
(i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and
(ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 300.301.
(b) Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. (emphasis added)
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either--
(i) Initiate a hearing under 300.507 to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under 300.507 that the evaluation obtained by the parent did not meet agency criteria.
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34 CFR 300.532 Evaluation procedures.
Each public agency shall ensure, at a minimum, that the following requirements are met:
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(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, (emphasis added) whether or not commonly linked to the disability category in which the child has been classified.
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34 CFR 300.533 Determination of needed evaluation data.
(a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under Part B of the Act, (emphasis added) a group that includes the individuals described in 300.344, and other qualified professionals, as appropriate, shall--
(1) Review existing evaluation data on the child * * * and
(2) On the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine--
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(ii) The present levels of performance and educational needs of the child;
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(iv) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum.
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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:
Letter to Jill Gray, Texas Department of Special Education, from G. Thomas Bellamy, Director, Office of Special Education Programs, U.S. Department of Education (October 5, 1988).
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TEA (Texas Education Agency) requires that a school allow the district to correct defects with which the parents disagree prior to allowing parents to obtain an IEE. Only if parents find defects in the corrected evaluation is there a "disagreement." * * * we conclude that TEA's interpretation of 34 CFR 300.503(b) is incorrect, and that TEA's practice is contrary to EHA-B.
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The regulation provides the parents and agencies with certain rights after an evaluation with which the parents disagree is performed by the district. The question is whether the parents disagree with that evaluation, not whether they disagree with the district. The fact that the district also disagrees with its evaluation, or is willing to test further to see whether it agrees with its evaluation is not relevant under the regulation. * * * Moreover, any reevaluations or corrections carried out by the district as a result of the parents' disagreement cannot affect reimbursement of the IEE.
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Letter to Marian Matthews, Madison Metropolitan School District, from Jack Frye-Osier, Department of Public Instruction (March 10, 2000).
The department believes the (re)evaluation process is completed when the district provides the parent with the notice of evaluation findings required under 115.792(1)(b) Wis. Stats.
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The administration of additional tests or other evaluation materials after a proper notice of evaluation findings has been sent to the parent would require the district to initiate a reevaluation consistent with 115.782(4) Wis. Stats., including obtaining parental consent.
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DPI Information Update Bulletin 99.02 (March 1999), Questions 2, 7, 8, 10, and 11.
2. When parents initiate an IEE, who selects the examiner?
When the parents of a child with a disability initiate an IEE, the parents have the right to select the examiner. Upon receiving a request for an IEE, a local educational agency must inform parents about where to obtain an IEE. Listing the names and addresses of examiners who meet local educational agency criteria is one way to inform parents. Also the agency must inform the parents of the agency's IEE criteria. The agency should present the information in a manner that is easily understandable. The department strongly recommends that parents contact their child's local educational agency to learn about the agency's IEE criteria before obtaining an IEE?
7. How should a local educational agency respond when it receives a request for an IEE from a parent who disagrees with the local educational agency's evaluation?
The local educational agency must respond to the request in a reasonable amount of time and in a manner that does not interfere with the child's right to a free appropriate public education. The local educational agency must either provide the IEE at public expense or request a due process hearing to show that its evaluation is appropriate. If the final decision in the due process proceedings is that the agency's evaluation is appropriate, the parent still has a right to an IEE, but not at public expense.
8. If parents present a local education agency with the results of an IEE and request payment, how should the district respond?
The local educational agency must respond to such a request without unnecessary delay. The local educational agency must either pay for the IEE or request a due process hearing to show that its evaluation is appropriate or that the IEE does not meet local educational agency criteria.
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10. May a local educational agency establish policies to ensure that an IEE is obtained at a reasonable cost?
The agency may establish maximum allowable costs for IEEs. However, the agency must set the maximums so that they permit parents to choose from among the qualified examiners in the area and only eliminate unreasonable fees. An agency must permit parents to show that unique circumstances justify an IEE that exceeds the district's maximum allowable cost. If unique circumstances justify an IEE that exceeds the maximum allowable cost, the agency must ensure that the IEE is publicly funded. If the total cost for an IEE exceeds the local educational agency's cost criteria and there is no justification for the excess cost, the cost of the IEE must be publicly funded up to the agency's maximum allowable cost.
11. If a local educational agency has not established maximum allowable costs for IEEs may it refuse to pay the full cost of an IEE that it considers too expensive?
If the agency has not established a maximum allowable cost, the parents may use any qualified examiner. The agency must pay the fee, or, if the agency believes the fee is unreasonable, challenge the parents' request in a due process hearing. In the hearing the agency must show that the IEE is unreasonably expensive.
FINDINGS OF FACT:
The student whose education is the subject of this complaint is a seventeen-year-old child with a disability. On March 16, 2000, a local educational agency (LEA) program support teacher referred the child for a reevaluation based on the child's behavior and a suspected additional impairment in the area of emotional disturbance. On March 16, 2000, a notice of reevaluation was provided to the child's mother, including notice that the IEP team, including the parent, had determined that no additional tests or other evaluation materials needed to be administered. On May 9, 2000, an IEP team meeting was conducted to review and revise the child's IEP, determine continuing eligibility for special education, and determine educational placement. The child's parent and a parent advocate attended the IEP team meeting. The parent raised issues relating to the child's transition needs. After the meeting, the program support teacher reviewed existing data relating to the child's current transition needs and prepared a report titled "Assessment of Transition Needs" for the IEP team A copy of the report was sent to the child's parent prior to the June 7, 2000, IEP team meeting
On June 7, 2000, another IEP team meeting was convened. The child's parent, a parent advocate and a developmental disability case manager, and LEA staff attended. The team considered the program support teacher's transition report, but did not include the child's transition needs in the team's evaluation report. All five LEA IEP team participants signed the evaluation report indicating that they agreed with it. The child's parent, the developmental disability case manager and parent advocate signed the report indicating that they disagreed with the evaluation report. The LEA provided the parents written notice, dated June 7, 2000, of the results of the IEP team's evaluation.
On June 9, 2000 the parent's advocate on behalf of the parent requested an independent educational evaluation (IEE) at public expense to address the child's transition needs. Upon receiving the request, the LEA did not inform the parent about where to obtain an IEE or of the local educational agency's IEE criteria. On June 29, 2000, the LEA sent a letter to the parent advocate informing the parent advocate and the parent that the evaluations they requested would be completed by an LEA IEP team. On July 6, 2000, a referral for reevaluation was completed by the program support teacher. On that date, the parent was sent a notice of reevaluation. The notice of reevaluation states: "Requests for other independent evaluations are currently rejected to allow the district to proceed within the IEP process." The parent was also sent a notice and consent for additional testing in the areas of transition and psychiatric, medical, behavioral, and developmental evaluations.
Federal special education law defines "evaluation" as procedures used in accordance with federal rules to determine whether a child has a disability, and the nature and extent of the special education and related services that the child needs. The evaluation must be 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. Such needs may include transition services and courses of study to prepare the child for a successful transition to his goals for life after secondary school. An LEA's evaluation may be based solely upon existing data or also may include the administration of tests and other evaluation materials to the child. Whether an LEA's evaluation includes the administration of tests or other evaluation materials, or whether it is based solely upon existing data, after the conclusion of the evaluation the parents are entitled to an IEE if they disagree with the agency's evaluation. Upon receiving a request for an IEE, an LEA must inform parents about where to obtain an IEE and of the agency's IEE criteria.
On March 16, 2000, the district notified the parent that her son would be reevaluated for an additional impairment, and that no additional tests or other evaluation materials were needed to complete the reevaluation. At a May 9 IEP meeting, the parent raised issues relating to the child's transition needs. After the meeting the program support teacher reviewed existing data relating to the child's current transition needs and prepared a report titled "Assessment of Transition Needs" for the IEP team. A copy of the report was sent to the child's parent. On June 7, 2000, the LEA conducted an IEP team meeting to determine continuing eligibility, review and revise the child's IEP, and determine educational placement. At the June 7 meeting, the IEP team considered the transition report, but did not include the child's transition needs in the team's report. The parent disagreed with the LEA's evaluation of the child. On June 9, 2000, the parent advocate wrote a letter to the LEA on behalf of the parent requesting an IEE addressing the child's transition needs.
When the parent disagreed with the LEA's evaluation and alleged that it did not adequately address the child's transition needs, the LEA could have continued its evaluation to resolve the parent's concerns. Instead, the LEA concluded its evaluation on June 7 and provided the parent a notice of its findings. After receiving a request for an IEE, the LEA did not inform the parent about where to obtain an IEE or of its IEE criteria. Instead, the LEA rejected the parent's request for an IEE and initiated another IEP team evaluation that included an assessment of the child's transition needs.
LEA staff did not view the reevaluation initiated on March 16, 2000, as including consideration of transition issues. However, an evaluation must be sufficiently comprehensive to identify all of the child's special education and related services needs. During the evaluation, the parent raised the issue of the child's transition needs. In response LEA staff conducted a review of transition data, but the evaluation report does not include findings relating to transition. The parent believed that the LEA had not adequately addressed the child's transition needs during the evaluation and requested an IEE. After completing its evaluation and upon receiving the IEE request, the LEA was obligated to inform the parents about where to obtain an IEE and of the agency's IEE criteria. The LEA did not inform the parents about where to obtain an IEE and of the agency's IEE criteria. In this respect the complaint is substantiated.
The LEA also argues that the parent failed to request additional tests during the evaluation; and therefore, had no right to an IEE until the LEA completed another evaluation that includes tests. This position is not supported by the law. Neither the fact that the parent failed to request the LEA to administer tests, nor the district's willingness to initiate and conduct a new evaluation that includes the administration of tests or other evaluation materials prevents the parent from obtaining an IEE at public expense.
The School District of Beloit shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:
- the complainant's request for an IEE at public expense is appropriately addressed; and
- upon receiving a request for an IEE, the school district informs parents about where to obtain an IEE and of its IEE criteria.
The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.
This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.
Michael J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy