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IDEA Complaint Decision 19-034

On May 23, 2019 (form dated May 19, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2018-19 school year, properly conducted a special education evaluation and properly considered the results of an independent educational evaluation (IEE).

An independent educational evaluation (IEE) is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate (34 CFR § 300.502).

School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. Each district must establish procedures for accepting and processing referrals. All referrals must be in writing and the district must accept and process all referrals submitted to the district. A parent may submit a special education referral to the school district. Upon receipt of a referral, the district must appoint an individualized education program (IEP) team, and the IEP team must conduct a review of existing data to determine what additional data, if any, are needed to complete the evaluation. The student’s parent must be afforded an opportunity to participate in this review. In addition, this review must include not less than one regular education teacher, one special education teacher, and a local educational agency (LEA) representative. If the IEP team determines additional data are required, within 15 days of receiving the referral, the district must send to the student’s parent a request for consent for additional testing. An IEP team meeting must be conducted to determine eligibility within 60 days after receiving parental consent for additional assessments.

On February 20, 2019, the district received the IEE report from the independent psychologist. On February 26, the district made a special education evaluation referral for an initial evaluation. A review of existing evaluation data was conducted on March 12 and 13, with the required district staff members and parent. On March 19, within 15 business days of receiving the referral, the district sent the parent notice and a request for consent to evaluate the student and conduct additional assessments. This included a description of the areas to be evaluated and the types of assessments that would be used. On March 26, the district received the parent’s consent to conduct additional assessments. On April 1, the parent contacted the district to request an additional evaluation in the area of occupational therapy. All required team members conducted a review of existing evaluation data on April 1 and parental consent for additional testing was received on April 2. On May 14, 2019, within the 60 day timeline, the IEP team met to consider the results of an IEE in the areas of Other Health Impairments (OHI), Autism, and Emotional Behavioral Disability (EBD), review the results of the additional assessments in the areas of occupational therapy and speech and language, and determine initial eligibility in special education. Prior to the evaluation meeting, the LEA representative provided all the IEP team members, including the parents, a copy of the IEE report. The evaluation report documented the results of the IEE and recommendations of the independent psychologist. The evaluation report was projected during the meeting and a copy was provided to the parent. The IEP team reviewed information, including the results of the IEE evaluation, academic and behavior information, teacher rating scales, teacher interviews and observations, and parent rating scales and concerns. During the IEP team meeting, the parents expressed concerns regarding the student’s social interactions, medical issues, and fatigue during class.

The IEP team considered the impairment areas of Autism, Emotional Behavior Disability (EBD), Other Health Impairment (OHI), and Speech and Language. The IEP team used teacher observation data and interviews, behavior rating scales, and evaluation information to demonstrate the student’s overall functioning is typical compared to the same aged peers, and that the student displayed age appropriate behavior and social skills. The IEP team reviewed the criteria checklist for EBD and Autism and determined the student did not met criteria in the areas of Autism or EBD. The parent provided information on the student’s chronic health problems that include constipation, asthma, migraines, and vestibular nystagmus. The parent reported the student has limited vitality due to her asthma. Based on teacher reports and nurse contact logs, there was no documentation of limited strength or vitality. The IEP team also reviewed information from the student’s teachers and referrals to the nurse’s office to determine whether the student had difficulty with alertness or attention in class. The teacher interviews and observation data demonstrate that although two teachers recalled the student sleeping in class, others did not observe this, and there was no frequency or consistency reported. Rather, it was limited to those two occasions. The team reviewed the fine motor assessments, which showed the student has average visual motor and visual perceptual skills. Although measurements of the student’s motor skills fell slightly below normal, the errors were very slight. The team reviewed the results of the speech and language assessment. The student did not meet criteria in the areas of speech and language due to formal testing scores within the average range and informal assessments revealing language and pragmatic skills within the normal range.

The IEP team determined the student did not have a need for special education. The IEP team’s evaluation report included documentation that the student was not eligible for special education. The district properly conducted a special education evaluation and properly considered the results of an independent educational evaluation (IEE).

This concludes our review of this complaint. This decision is final for the IDEA State Complaint process.

Sincerely,

//signed BVH 7/19/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:sao

For questions about this information, contact DPI Sped Team (608) 266-1781