Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On May 7, 2004, the Department of Public Instruction received a request for a due process hearing filed by [Father and Mother] (Parents), on behalf of [Student] (Student), against the Montello School District (District) under Chapter 115 of the Wisconsin Statutes and the federal Individuals with Disabilities Education Act (IDEA). The Department referred the matter to the Division of Hearings and Appeals.

Prehearing telephone conferences were held on May 21, June 8, June 23, July 1, and July 3, 2004. The due process hearing was held on November 1, 2004. The parties submitted post-hearing briefs on November 19, 2004. Pursuant to the joint request of the parties, the decision deadline was extended to December 3, 2004.

Was the District's August 2004 evaluation of the Student inappropriate so that, consequently, the Parents are entitled to an independent educational evaluation at public expense?

1. The Student is a 15-year-old girl who is enrolled in the 10th grade in the District. She is a child with disabilities in need of special education as defined by state and federal law. The District has identified her areas of disability as orthopedic impairment, other health impaired, and speech and language impairment. (Tr. 7)

2. The Student's medical diagnosis is spastic athetoid quadriplegia cerebral palsy. She is wheelchair bound, has a seizure disorder, dysphagia (a swallowing disorder), GE reflux disorder, orthopedic problems, and is incontinent. The Student is primarily non-verbal and communicates primarily through head nods. (Tr. 7-8)

3. The District conducted a triennial reevaluation of the Student, as required by the IDEA and § 115.782(4)(a)2, Wis. Stats., in March 2003. (Tr. 130, Ex. 7)

4. The District held an IEP team meeting on October 28, 2003 to discuss, among other things, the Parents' request for an intellectual functioning assessment of the Student. (Ex. 7, Tr. 209) The parental request was not for an evaluation to determine the Student's eligibility or continuing eligibility for special education, but rather to determine the Student's "cognitive educational intellectual level" or intelligence quotient (I.Q.). (Tr. 303-304) The District agreed to conduct an evaluation to try to determine the Student's intellectual or cognitive abilities, and the parties agreed that the evaluation would include assessments in both the home and school environments. (Ex. 3, Tr. 241-244)

5. The Parents requested that the home component of the assessment not be scheduled until mid-to-late January 2004 after a home-remodeling project was completed. (Tr. 224, Ex. 8 and 11)

6. On January 19, 2004, the Student's father wrote to the District and requested an independent educational evaluation (IEE) of the Student at public expense. (Ex. 5) By letter dated January 21, 2004, the District stated that the Parents could request an IEE at public expense after the District completed its evaluation of the Student. The District further informed the Parents that they could obtain an IEE at their own expense and sent the Parents a copy of the District's IEE policy. The District also asked the Parents to contact the District with convenient dates for conducting the home component of the assessment. (Ex. 8, Tr. 224)

7. At the Student's annual IEP team meeting, held on March 15, 2004, the home observation component of the assessment was scheduled for August 17 and/or August 19, 2004. (Tr. 251, Ex. 11)

8. By letter dated March 29, 2004, the Student's mother informed the District that the Parents had contacted the Waisman Center in Madison regarding an IEE of the Student that they anticipated would be started in the fall of 2004. (Ex. 12)

9. The Parents filed a due process hearing request with the Department of Public Instruction against the District on May 7, 2004, prior to the conclusion of the District's evaluation of the Student.

10. The home observation of the Student was completed on August 17, 2004, and the District finalized its 43-page Comprehensive Educational Evaluation report (evaluation report) regarding the Student on August 19, 2004. (Ex. 3)

11. The evaluation report was prepared by Dawn Sine, the District's school psychologist, and Joan Hawkinson, Associate Director of Special Education for CESA-5, both of whom participated in the evaluation and are very familiar with the Student. (Ex. 3, Tr. 129-130 and 204) Both are licensed by the State of Wisconsin Department of Public Instruction in their respective fields and have significant experience working with and assessing special education students. (Ex. 4 and 6, Tr. 201-203, 126-128 and 178)

12. The evaluation report includes detailed information of the results from all of the following evaluation methods that were utilized: the Scale of Independent Behavior Revised (SIB-R) that was completed by the mother, school nurse, and home health nurse; review of school records and medical records from 1996 to the present; observations of the Student in her home, regular education classroom, special education classroom, and community; videotapes of the Student at home and in school; and one-on-one sessions with the Student. (Ex. 3) The SIB-R is a standardized test that measures a child's functioning level but does not provide an intelligence level. (Tr. 143-148)

13. The evaluation report also includes information about Ms. Sine's repeated attempts to administer the Test of Nonverbal Intelligence III (TONI-3), which is a standardized test used to measure the intellectual level of a nonverbal child. (Ex. 3, Tr. 134-137) The Student refused to respond when the evaluator attempted to administer the TONI-3, so no valid results were obtained for that test. (Tr. 137-140) A typical standardized intelligence test, such as the WISC-4, was not administered because it is a language-based test that would have required so much adaptation that the results would have no longer been valid and reliable. (Tr. 134-135, 140-142)

14. The District was unable to determine the Student's specific cognitive intellectual level, and the evaluation report does not contain an I.Q. score for the Student. (Ex. 3, Tr. 142-144, 157 and 228) The evaluation report does contain extensive information about the Student's functional and academic skill levels, including the following from the 10-page summary section:
    Since we are not able to obtain an intelligence level for [the Student] we did consider what [the Student] has demonstrated that she is capable of doing and what she has done. As was mentioned earlier, ratings on the SIB-R from both Parents, Special Education Teacher, School Nurse, and the Speech Therapist all indicated that [the Student's] overall interaction and Communication skills, personal living skills and community skills are all significantly below average and within the early childhood level.

    ***

    Specifically, she is delayed in all areas of communication to the level stipulated in the regulations. Her academic skills in reading, written language, math, social skills, self help, applying academic skills in life, home living skills, leisure and work skills are all significantly below her age peers as stipulated in the [cognitive disability] definition. (Ex. 3, pp. 34 and 41)

15. The District also retained Dr. Brenda Leske, a licensed neuropsychologist in private practice in Madison, to participate in the evaluation. (Ex. 3, Tr. 245-247) Dr. Leske has extensive experience in child psychology, has reviewed or conducted hundreds of school evaluations of students, and previously consulted with the District regarding the Student in 2000. (Tr. 14-17 and 37)

16. During this evaluation, Dr. Leske observed the Student in school, reviewed the Student's school records, reviewed videotapes of the Student, interviewed school staff, reviewed the District's evaluation report of the Student, and consulted with outside professionals. On August 18, 2004, she prepared a neuropsychological evaluation report regarding the Student. (Ex. 2) Dr. Leske concluded that it was unnecessary for her to conduct further formalized assessments of the Student and did not recommend that the District conduct any additional testing. (Tr. 54 and 60, Ex. 2) In her report, Dr. Leske noted that the Parents and professionals who work with the Student believe that the Student understands more than she can demonstrate and has "underlying abilities," but "no mechanism has been discovered to assess and delineate this potential." (Ex. 2)

17. After the evaluation report was completed, the Parents discussed their request for an IEE with District's counsel. (Tr. 290-292)

Under the IDEA, a parent has the right to an IEE at public expense if: (1) the parent disagrees with the school district's evaluation of the child, and (2) the district is unable to show at a due process hearing that its evaluation is appropriate. 34 CFR § 300.502(b). See also Letter to Young, 39 IDELR 98 (OSEP 2003).

Here, the Parents clearly disagree with the District's evaluation of the Student. In fact, the Parents requested an IEE at public expense and requested a due process hearing prior to the District completing its evaluation of the Student. The Parents' premature requests for an IEE and due process hearing raise the question of whether they had decided they wanted an IEE at public expense no matter what the outcome of the District's evaluation. Nevertheless, throughout the process, the Parents have made it clear that they disagree with the District's evaluation. After the evaluation was completed, the Parents discussed their request for an IEE with District's counsel, rather than directly with District staff. (Tr. 290-292) Although the Parents' IEE request followed a circuitous route, I find that the first criterion for obtaining an IEE at public expense has been met.

The second criterion requires an analysis and determination as to the appropriateness of the District's evaluation. As a preliminary matter, the District argued that it conducted only an intellectual functioning assessment of the Student, not an "evaluation" as defined by state and federal special education laws, so the Parents' disagreement with it does not trigger the right to an IEE.

The federal regulations implementing the IDEA define "evaluation" as "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." 34 CFR § 300.500(b)(2). The parties agree that the District did not evaluate the Student to determine eligibility or continuing eligibility for special education. Indeed, the Student's father testified at the hearing that the evaluation was done to determine the Student's "cognitive educational intellectual level," not to determine eligibility. However, the "Comprehensive Educational Evaluation" that was conducted by the District went beyond a simple assessment and included information related to the nature and extent of the special education and related services that the Student needs. Assuming, arguendo, that the District's evaluation of the Student constituted an evaluation under the federal regulations, it must then be determined if the District complied with statutory criteria in conducting the evaluation.

Districts must adhere to the following requirements when conducting a special education evaluation.

(2) Conduct of evaluation. (a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following:
1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities.
2. Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
3. Ensure all of the following:
a. That tests and other evaluation materials used to assess a child under this section are selected and administered so as not to be racially or culturally discriminatory and are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so.
b. That any standardized tests that are given to the child have been validated for the specific purpose for which they are used, are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of such tests.
c. That the child is assessed in all areas of suspected disability.
d. That assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are used.

(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.
b. The present levels of performance and educational needs of the child.
c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.
d. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable, annual goals specified in the child's individualized education program and to participate, as appropriate, in the general curriculum.
(c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b)2.

Wis. Stat. § 115.782(2). See also 34 CFR § 300.532.

The evidence presented established that the above requirements were met in this case. The District used and/or attempted to use a variety of assessment tools that were administered by trained, qualified staff. The District did not use any single procedure or rely on any single source of information. The evaluators reviewed information from the Parents, the school nurse, the Student's teacher(s) and speech/language therapist. In addition, the evaluators reviewed educational records and videotapes of the Student, met individually with the Student, and observed the Student in school, at home and in the community. The District also retained a private neuropsychologist, an expert in child psychology who had previously consulted regarding the Student, to participate in the evaluation.

Furthermore, the District used technically sound testing instruments and attempted to administer the tests, when feasible, in the Student's mode of communication. There was no evidence presented that the tests used were racially or culturally discriminatory to the Student. Because the evaluation was not done to determine eligibility, the requirement to assess the Student in all areas of suspected disability is inapplicable.

Here, the District has met its burden of proof and has shown that its evaluation of the Student was appropriate. Therefore, the Parents are not entitled to an IEE of the Student at public expense.

The District's evaluation of the Student was appropriate and, consequently, the Parents are not entitled to an IEE at public expense.

The due process hearing request is dismissed with prejudice.

Dated at Madison, Wisconsin on December 3, 2004.

APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512.

A copy of the appeal should also be sent to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400.

The Division will prepare and file the record with the court only upon receipt of a copy of the appeal. It is the responsibility of the appealing party to send a copy of the appeal to the Division of Hearings and Appeals. The record will be filed with the court within 30 days of the date the Division of Hearings and Appeals receives the appeal.