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IDEA Complaint Decision 10-002

On January 12, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Elkhorn Area School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the period between January 12, 2009 and January 12, 2010:

  • Properly determined the student was not eligible for special education;
  • Properly responded to a parent’s request for an independent educational evaluation (IEE); and
  • Properly responded to the parent’s request to review education records.

The student had been identified as a student with a disability under the category of emotional behavioral disability (EBD). On March 19, 2009, the mother requested a special education reevaluation of the student’s eligibility under the categories of autism, EBD and other health impairment (OHI). On May 20, 2009, an individualized education program (IEP) team meeting was held for the student with the purpose of determining the student’s eligibility under those categories. The IEP team determined the student no longer met eligibility criteria under EBD as he had acquired and consistently applied compensatory strategies to reduce the effects of situational anxiety on his classroom adjustment. He was also able to establish and maintain social relationships. The IEP team also evaluated him under the areas of autism and OHI and determined he did not meet the eligibility criteria for either of these two categories. The IEP team found the student did not display difficulties with social interactions and social communication, and his health problems did not result in limited strength, vitality or alertness. The district properly determined the student was not eligible for special education.

A parent has the right to an IEE at district expense if the parent disagrees with an evaluation obtained by the district. The district must respond to such a request without unnecessary delay. A district must provide to parents, upon request for an IEE, information about where an IEE may be obtained and the district criteria applicable for IEEs. The district must also either file a request for a due process hearing to determine its evaluation is appropriate or ensure the IEE is provided at district expense.

On May 21, 2009, the mother requested an IEE. On May 22, 2009, the district provided the mother with a copy of the district IEE policy. The student was evaluated by a private school psychologist for both autism and EBD between May 23, 2009 and July 9, 2009. The district paid for the evaluation. The district properly responded to a parent’s request for an IEE.

Each district must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the district. The district must comply with a request without unnecessary delay and before any meeting regarding an IEP, and in no case more than 45 days after the request is made.

On December 9, 2009, the mother called the district and requested to review the student’s records. In a letter dated December 9, 2009, the mother requested a complete copy of the student’s records. She specified the records should include copies of all evaluations and test scores regarding the student so she could review the records prior to the student’s next IEP team meeting, which was held on March 9, 2010. In a letter dated January 5, 2010, the mother stated she had received records on December 17, 2009, but she believed some of the records were missing. On January 6, 2010, the mother met with the district school psychologist and was provided a copy of the student’s file to review. The district contends the copies sent to the mother were a complete record. In a letter dated February 4, 2010 to the mother, the district verified the student’s records copied and sent to the mother were complete. The district properly responded to the mother’s request to review records and to receive a copy of the student’s records.

This concludes our review of this complaint, which we are closing.

//signed CST/AJC 3/11/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy