Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On or about June 16, 1998, [Father] and [Mother] requested a due process hearing on behalf of their son [Student]. A prehearing conference was held on July 8, 1998. During the following two months, the parties attempted to reach a settlement agreement, but were unsuccessful. On September 9, 1998, Attorney Hal Harlowe filed a Notice of Appearance with the undersigned administrative law judge (ALJ). A prehearing conference was subsequently held on September 16, 1998. The matter was then scheduled for a hearing on October 5 and 6, 1998. Mr. Harlowe, citing a conflict between his clients and him, withdrew as counsel for the [Parents] on or about September 25, 1998.

A telephone prehearing conference was held on October 2, 1998, with Jeffrey Schmeckpeper, attorney for the District; and [Mother], [Student]'s mother. During the conference, Mr. Schmeckpeper indicated that the [Parents] had informed the District that there had been a change in [Student]'s condition. As a result, the District initiated a re-evaluation of him, but had been unable to secure the [Parents] consent to go forward with it. [Mother] disputed the District's assertion and also requested additional time to secure new counsel. Her request was granted. The parties were directed to meet with the undersigned administrative law judge on Monday, October 5, 1998, to address whether or not the [Parents] had given the District consent to conduct a re-evaluation of [Student].

On October 2, 1998, the [Parents] filed another due process hearing request with the Department of Public Instruction. The matter was combined with the above-captioned matter. On Monday, October 5, 1998, [Mother] left a voice mail message for the undersigned ALJ indicating that she ([Mother]) was withdrawing [Student] from the [Unnamed] School District and that it would be unnecessary to meet that same day. [Mother] also filed a letter with the undersigned ALJ on October 5, 1998, advising the same.

Mr. Schmeckpeper filed a motion with the undersigned ALJ on or about October 15, 1998, in which he requested the District be allowed to conduct a re-evaluation without the consent of the [Parents]. The [Parents] filed no response. Mr. Schmeckpeper requested an extension of these proceedings pursuant to 34 C.F.R. § 300.512. His request was granted and the final decision in the matter is to be issued on or before December 31, 1998.

The [Parents] sent a letter to the District on August 25, 1998, in which they indicated the following:

[t]his PI-2217 form does not include the new medical information about [Student] which further explains his limited ability to be educated in the school setting at this time. This is part of the information which needs to be part of [Student]'s PLOPS on his IEP. We sent a fax two weeks ago to the doctor asking him to write a one-to-two page explanation for the school and our ABA team, about how the new medical information affects [Student]'s performance, behaviors, his need for certain supplementary aides and supports, and also how it affects [his] ability to be taught in the school environment.

In addition, on or about August 26, 1998, the [Parents] sent another letter to the District in which they noted that "[t]here have been changes in our son over the summer which necessitate a change in his program. . . . Because of these changes and these medical needs, the tentative schedule you have kindly sent to us cannot take place at this time." The following day, [Mother] sent a letter by facsimile transmission to the District in which she reiterated that "[t]here have been changes in our son over the summer/new medical information gathered which necessitate a change in his program."

Based on the information supplied by the [Parents], the District concluded that a re-evaluation of [Student] was necessary. Accordingly, on September 9, 1998, the District sent the [Parents] a Notice of Re-Evaluation, and, shortly thereafter, a Re-Evaluation Notice and Consent for Additional Tests. However, the [Parents] did not return those forms to the District.

The Code of Federal Regulations provides, in part:

Each SEA and LEA shall ensure . . . [t]hat an evaluation of the child . . . is conducted every three years, or more frequently if conditions warrant, or if the child's parent or teacher requests an evaluation.

34 C.F.R. § 300.534 (b). In addition, local school districts are responsible not only for children with exceptional education needs who reside within district boundaries, but also for those who are enrolled in the district's schools. See §§ 115.77 (1m) (a) and (b), 115.78 (1m), and 115.787, Wis. Stats.

The Seventh Circuit addressed the issue of parental consent in conjunction with a three-year re-evaluation in Johnson v. Duneland School Corp., 92 F. 3rd 554 (7th Cir. 1996), 24 IDELR 645. In Johnson, the District informed the parents that it would need to evaluate their child prior to developing an IEP for him. The District was concerned because the child had been out of school for some time and it had no medical information about an experimental medication the child was taking. However, the parents would not comply.

The court ruled that:

Every circuit court to address the issue has held that 34 C.F.R. sec. 300.534 (b) grants schools a right to conduct a three-year reevaluation. These courts reason that because the school is required to provide the child with an education, it ought to have the right to conduct its own evaluation of the student and the school cannot be forced to rely solely on an independent evaluation conducted at the parents' behest. We agree with the reasoning of these courts.

Id. (citations omitted) The court went on to note that a school's right to conduct a three-year re-evaluation is not limited by parental consent, particularly when a child's condition has changed since he last attended school. Id.

Similarly, the court held in Patricia P. v. Board of Educ. Of Oak Park and River Forest High Sch. Dist. No. 200, 28 IDELR 298 (N.D. Ill. 1998), that "[i]t is beyond cavil that a school district has the right to conduct its own evaluations . . ." Moreover, if a "'[s]tudent's parents want him to receive special education under IDEA, they must allow the school itself to reevaluate the student and they cannot force the school to rely solely on an independent evaluation.'" Id. (citation omitted).

The [Unnamed] School District has demonstrated by a preponderance of the evidence that it is necessary to re-evaluate [Student], absent parental consent. Such an evaluation is necessary to assess [Student]'s current needs and to determine an appropriate placement for him. As the Seventh Circuit has noted, school districts have a right to re-evaluate students and that right cannot be blocked by a parent withholding consent. [Student] has now been out of school for a considerable period of time. According to several different representations the [Parents] have made, [Student]'s condition has changed. Although the [Parents] may have critical information about [Student]'s status, that does not preclude the District from conducting its own evaluation of him. It is therefore essential that the District be given the opportunity to evaluate [Student] before designing an individualized educational program and placement for him. If the [Parents] are interested in securing special education under the IDEA for [Student], they must allow the District to go forward with its own evaluation.

NOW, THEREFORE, IT IS HEREBY ORDERED that the [Unnamed] School District may conduct a re-evaluation of [Student] to determine his exceptional education needs as defined in the Individuals With Disabilities Education Act and in Chapter 115 of the Wisconsin Statutes.

IT IS FURTHER ORDERED that the issues identified in the Order dated July 8, 1998, and modified by Orders dated on or after July 28, 1998, are hereby DISMISSED.

IT IS FURTHER ORDERED that the Due Process hearing request dated October 2, 1998, is hereby DISMISSED.

Dated at Madison, Wisconsin, this 24th day of November, 1998.