On February 28, 2022 (form dated February 22, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department's decision regarding that complaint. The issues identified are whether the district, during the 2021-22 school year, properly determined whether both parents have the authority to make educational decisions for a student with a disability and properly responded to a parent's request for an independent educational evaluation (IEE).
A parent's right to request an IEE at public expense if the parent disagrees with the district's evaluation is one of the procedural safeguards afforded to parents under the Individuals with Disabilities Education Act (IDEA). Either parent has the right to request an IEE, and both parents do not have to be in agreement in order for one to be provided. When a parent requests an IEE, the district must respond to the request in a reasonable amount of time by either providing the IEE at public expense or by filing a due process complaint to request a due process hearing to show that its evaluation is appropriate. If a parent requests an IEE, the district may ask why the parent objects to the district's evaluation, but the district may not require the parent to provide an explanation and may not unreasonably delay in responding to the request. (34 CFR § 300.502).
A biological or adoptive parent is presumed to be the child's parent unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child. If a judicial decree or order identifies a specific person or persons to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the child's "parent" for purposes of IDEA. (34 CFR §300.30[b])
The student who is the subject of this complaint is in the sixth grade at the district elementary school. The district conducted the student's three-year reevaluation in November 2021. On February 16, 2022, the father requested an independent educational evaluation (IEE), stating that he disagreed with the adaptive functioning assessment's reevaluation results and requested further evaluation in several areas. Upon receipt, the district sent an email to the student's mother asking if she was in agreement as she had "impasse authority on education decisions." The mother responded that she was denying the father's request using her impasse-breaking authority because she did not want the student subjected to unnecessary repetitive testing. On February 18, 2022, the district sent the father an email denying his request for an IEE based on the mother's reply.
In requiring the mother's agreement, the district relied on a temporary family court order issued in October 2021. The pertinent language of the order states:
On all decisions related to the minor child's participation in the #### (district) academic classes and educational activities, the Petitioner-Mother is granted impasse authority. This would include decisions regarding the child's participation in things like band, choir, field trips, or any other activities, whether the majority of the activity is during the school day. The parents are ordered to respectfully communicate regarding these activities and try to reach an agreement. If the parents are unable to reach an agreement as to whether or not the child participates in the activity, then the Petitioner-Mother shall have the authority to make the final decision.
On March 23, 2022, the department sent a letter to the Court Commissioner seeking clarification as to whether the impasse authority granted to the mother extended to the procedural safeguard right to request an IEE under IDEA. The department has not received a response from the Court Commissioner, and therefore the department must rely on the plain language of the order.
The order, as written, does not grant the mother broad impasse authority over all education decisions, including the right to request an IEE. Rather, it is limited to matters relating to the child's participation in academic classes and educational activities. The examples provided in the order, such as participation in band, choir or field trips, or any other activity when the majority of the activity is during the school day, are significantly different from an IEE, which frequently does not occur during the school day and is not considered a class or educational activity. While the department understands this list is not exhaustive, an IEE does not fall under the same classification as the activities described in the order, and the order does not overcome the presumption that the biological father is a "parent" for IDEA purposes. (34 CFR §300.30[b])
In its response to the complaint, the district cites IDEA Complaint Decision 17-065 (November 28, 2017), where the department found that because the father had educational decision-making authority pursuant to a court order, the district did not err in excluding the mother in the development of the IEP. That complaint, however, is distinguishable from the situation presented in this complaint. In 17-065, the court had explicitly given the father full educational decision-making authority. In this case, the mother's impasse-breaking authority is limited, as discussed above. If the Court had wanted to grant broad educational decision-making authority to the mother, it could have done so.
Finally, the district, in its response, notes that it acted in good faith when interpreting the court order, and the department does not disagree. The department recognizes that the district was placed in a difficult situation. However, the department must also ensure that a parent's procedural safeguards under IDEA are protected and, consequently, will avoid construing a court order more broadly than what the plain language of the order permits.
The district did not properly determine whether the father had the educational decision-making authority to request an IEE and, consequently, did not properly respond to the father's request for an IEE. Within 10 days from the date of this decision, the district must respond by either moving forward with providing the IEE at public expense or by filing a due process complaint to request a due process hearing to show that its evaluation is appropriate. Documentation of the district's response must also be submitted to the department within 10 days from the date of this decision.
All noncompliance identified above must be corrected as soon as possible and in accordance with the directive above. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department's website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.