IDEA Complaint Decision 99-033

On April 30, 1999 (letter dated April 26, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Waterford Jt. 1 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 ss. 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 correspondence and materials from the Racine County Children with Disabilities Education Board's (CDEB) assistant legal counsel and director of pupil services. Department staff also had discussions with the complainant, Racine County CDEB assistant legal counsel and director of pupil services.

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ISSUE:

Did the district violate the law by denying the complainant's request for payment of an independent educational evaluation (IEE) during the 1995-96 school year?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 11.08 (Repealed October 1, 1998)
Independent educational evaluation.

(1) RIGHT TO AN INDEPENDENT EDUCATIONAL EVALUATION. (a) A parent of a child who has been evaluated under s. PI 11.04 has the right to obtain an independent educational evaluation of the child if he or she disagrees with the M-team evaluation conducted by a board. The parent has the right to select the person to conduct the independent educational evaluation and to request payment for the independent educational evaluation from the board. A parent's request for payment for an independent educational evaluation shall be in writing. The board shall pay the costs of the independent educational evaluation unless the parent refuses to give the board a complete copy of the independent educational evaluation or it is found at a hearing that the board's M-team evaluation is appropriate or that the independent educational evaluation does not meet the requirements under sub. (2).

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(2) REQUIREMENTS OF AN INDEPENDENT EDUCATIONAL EVALUATION. An independent educational evaluation paid for by a board must meet all of the following requirements:
(a) The independent educational evaluation shall address each portion of the M-team evaluation that is in dispute.
(b) Each portion of the independent educational evaluation shall be conducted by a person whose professional qualifications exceed or are equivalent to those required by the board for a person to be able to conduct for the board the type of evaluation that is in dispute.
(c) The independent educational evaluation shall be conducted in accordance with the requirements under ss. PI 11.04(3)(d) and 11.35 and shall address the question of whether the child is a child with EEN.
(3) HEARING REGARDING A BOARD'S RESPONSIBILITY TO PAY FOR OR OTHERWISE PROVIDE FOR AN INDEPENDENT EDUCATIONAL EVALUATION. If a parent obtains an independent educational evaluation and the board believes that its M-team evaluation is appropriate or that the independent educational evaluation does not meet the requirements under sub. (2), the board may initiate a hearing under s. PI 11.10 to determine whether the board is required to pay for or otherwise provide the independent educational evaluation. If the hearing officer finds either that the board's M-team evaluation is appropriate or that the independent educational evaluation does not meet the requirements under sub. (2), the board is not required to pay for or otherwise provide the independent educational evaluation.
(4) BOARD'S RIGHT TO A COPY OF THE INDEPENDENT EDUCATIONAL EVALUATION. A board is not required to pay for or otherwise provide for an independent educational evaluation if the parent refuses to allow the board to obtain a complete copy of the independent educational evaluation and to make it part of the child's records.

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34 CFR 300.502 Independent educational evaluation.
(Federal regulations effective July 1, 1999)

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(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.
(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 s. 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 s. 300.507 that the evaluation obtained by the parent did not meet agency criteria.

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34 CFR 300.503 Independent educational evaluation.
(Federal regulation effective prior to July 1, 1999)

(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, on request, information about where an independent educational evaluation may be obtained.
(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.
(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 s. 300.301.
(b) Parent right to evaluation at public expense. 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. However, the public agency may initiate a hearing under s. 300.506 to show that its evaluation is appropriate. If the final decision is that the evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

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(e) Agency criteria. Whenever an independent evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria which the public agency uses when it initiates an evaluation.

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FINDINGS OF FACT:

The student whose education is the subject of this complaint was a seventh grade student who attended a program for the emotionally disturbed (ED) in the Waterford Jt 1 School District during the 1995-96 school year. He was a student in the Waterford Jt 1 School District from the fall of 1988 through the end of his eighth grade year in the spring of 1997.

On January 22, 1996, the parents referred their son for a reevaluation to determine whether their son had a learning disability. On March 7, 1996, a multidisciplinary team (M-team) determined that the child did not meet the eligibility criteria for learning disabilities (LD); however, he continued to meet the eligibility criteria for ED and the need for special education.

On March 15, 1996, the complainant wrote to the district to request an independent educational evaluation for her son as a result of the findings of his recent M-team. On March 25, 1996, the district's director of special education responded by letter indicating to the parents that they could request an IEE if they disagreed with the M-team evaluation conducted by the district, and that an IEE which is paid for by the district should address each portion of the M-team evaluation in dispute. The director asked the complainant to identify the portions of her son's M-team evaluation with which she disagreed.

On March 25 and 28, 1996, the complainant wrote to the district's director of special education to state her concerns with the district's recent evaluation. The complainant informed the district that her son's IEE was scheduled for April 18, 1996, at the Child and Family Psychological Services Clinic in Madison. On April 2, 1996, the director of special education responded in a letter describing the district's requirements for the qualifications of the person(s) conducting an IEE. The director requested copies of the credentials of the person(s) conducting the child's IEE and also indicated that if she proceeded with the IEE without the district verifying the qualifications of the person(s) conducting the IEE, the district could contest the payment.

On September 13, 1996, the district received an itemized statement of the IEE charges, along with a copy of the independent evaluator's credentials, from the parent. The IEE charges submitted to the district amounted to $1,015. A copy of the IEE report did not accompany the itemized statement of IEE charges.

On September 16, 1996, an M-team meeting was held to discuss the results of the IEE. The independent evaluator was present at this meeting. A copy of the IEE report was not available at September 16th meeting. A copy of the IEE report was shared at subsequent M-team meetings held on October 3 and 30, 1996. As a result of these meetings, the district determined that its March 7, 1996, M-team evaluation was appropriate.

On October 2, 1996, the director of special education wrote to the complainant to acknowledge that the district received her itemized bill for the IEE. The director stated that the district would not be obligated to pay for her son's IEE unless the district received a copy of the IEE report. The director felt that the charges associated with portions of the report were unrelated to the disputed portions of the district's March 7, 1996, M-team evaluation and should not be reimbursed. Finally, the director indicated that the district would not be required to pay for the IEE if the district's evaluation was found to be appropriate at a due process hearing.

On November 26, 1996, the independent evaluator administered additional testing to the complainant's son. Additional testing was done at parent request to address the district's concerns that the complainant's son had not had a recent intelligence test. However, the district did not receive a copy of the additional IEE testing results until October 21, 1997.

On July 23, 1997, the district received a copy of the social history report, along with an updated statement of itemized IEE charges. The complainant requested that the district reimburse her $2,215.80, instead of the original $1,015, for the costs associated with the IEE. The complainant assured the district that a copy of the November 26, 1996, testing results would be made available to them as soon as she received a copy. On October 21, 1997, the district received from the complainant a copy of the IEE results completed on November 26, 1996. The complainant again requested that the district reimburse her for the IEE costs.

On November 11, 1997, the director of special education responded to these letters from the complainant. The director indicated that the district should not have to pay for specified portions of the IEE. The director also indicated that a portion of the report was incomplete and the director challenged payment of the portions of the evaluation conducted in October 1996. The director concluded the letter by stating that for the reasons given the district was withholding payment of any testing done by the independent evaluator. The district has not paid for the independent educational evaluation nor has it requested a due process hearing regarding the evaluation.

CONCLUSION:

Under state and federal law, a parent has the right to obtain an IEE if he or she disagrees with the evaluation conducted by the LEA. The LEA must pay the costs of an independent educational evaluation unless a hearing officer finds that the LEA's evaluation was appropriate or that the independent evaluation did not meet specific requirements.

The complainant alleges that the school district violated the law by denying her request for payment of an IEE during the 1995-96 school year. On March 15, 1996, the complainant requested an IEE for her son as a result of the district's March 7, 1996, M-team evaluation. On September 13, 1996, the district received an itemized statement of IEE charges. The district received a copy of the IEE report at an October 3, 1996, M-team meeting. The results of the IEE were discussed at the October 3 and 30, 1996, M-team meetings. As a result of these meetings, the district determined that its March 7, 1996, M-team evaluation was appropriate. On July 21, 1997, the complainant resubmitted an updated statement of itemized IEE charges, along with a copy of the social history report. On October 21, 1997, the district received a copy of additional IEE testing completed in November 26, 1996.

The district, without unnecessary delay, was obligated either to pay for the evaluation or request a due process hearing to determine the appropriateness of the evaluation. The district has not paid for the evaluation nor has it requested a due process hearing. Instead the district continued to raise objections to the timeliness and appropriateness of the complainant's son's IEE. Therefore, the district violated the law by denying the complainant's request for payment of an IEE during the 1995-96 school year and failing to initiate a due process hearing on the matter. The complaint is substantiated.

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DIRECTIVE:

The Waterford Jt. 1 School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that a due process hearing is initiated immediately or the complainant is reimbursed for the cost of the independent educational evaluation.

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.

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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, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
9/3/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720