ses spring 2013 - all things considered

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All Things Considered

So You Want an IEE?

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Overview IEEs: Legal Requirements OAH Decisions to Be Considered

Fremont USD: What constitutes unreasonable delay in responding to IEE request?

Anaheim City SD: What can go wrong when district rejects IEE to defend its evaluation?

Placentia-Yorba Linda SD: Do parents have unlimited amount of time to request IEE?

Garvey SD: To what degree do IEP teams have to “consider” the results of an IEE?

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IEEs: Legal Requirements

Definition“An evaluation conducted by a qualified

examiner who is not employed by the public agency responsible for the education of the child”

34 C.F.R. § 300.502(a)(3)(i); Ed. Code § 56329

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Obligations When Parents Request Funding of IEE Provide parents

Procedural safeguards notice Information about where an IEE may be obtained Criteria applicable to IEEs

May ask why they object to evaluation, but can’t require explanation

34 C.F.R. § 300.502(a)-(b); Letter to Anonymous (OSEP 2010) 55 IDELR 106

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Obligations When Parents Request Funding of IEE “Without unnecessary delay” either:

File a due process complaintto show appropriateness of assessment

or Ensure that the IEE is provided

(unless it does not meet criteria)

34 C.F.R. § 300.502(a)-(b); Letter to Anonymous (OSEP 2010) 55 IDELR 106

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Denying IEE Request

Send parents prior written notice advising them of decision

File for due process to show appropriateness of assessment If assessment appropriate, not required to

pay for IEE If assessment inadequate, must fund IEE

34 C.F.R. § 300.502(b)(3); Ed. Code § 56329; 34 C.F.R. § 300.503

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Agreeing to Fund IEE

Notify parents as soon as decision is made

Exchange information Contact evaluator Schedule IEP meeting (but can’t require

examiner’s presence)

Letter to Anonymous (OSEP 2010) 55 IDELR 206

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Other Requirements for IEE Requests Must dispute completed assessment Only one IEE per evaluation Payment

Advance funding Direct funding Reimbursement

34 C.F.R. § 300.502; Ed. Code § 56329, subd. (b); Letter to Petska (OSEP 2001) 35 IDELR 191; Letter to Anonymous (OSEP 2010) 55 IDELR 106

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Criteria for IEE Evaluators Can’t establish stricter rules than those

applied to own evaluatorsCan’t prohibit association with private schools Can’t require experience in the public schools May set licensing rules, provided same

licensure required for district evaluators

Letter to Petska (OSEP 2001) 35 IDELR 191

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Criteria for IEE Location Geographic area must be

the same as that used for own assessments

Parents must have opportunity to show that evaluator from outside area is required for appropriate IEE

Letter to Anonymous (OSEP 2010) 56 IDELR 175

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Criteria for IEE Cost Can establish reasonable cost criteria Parents must have chance to justify

selection of more expensive evaluator If costs exceed criteria, consider due process

Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46690 (August 14, 2006); Letter to Petska (OSEP 2001) 35 IDELR 191

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Obligation to ‘Consider’ IEE Must “consider” results of

IEE, provided it meets criteria

Law does not define meaning of “consider”

34 C.F.R. § 300.502(c)(1)

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Case #1: Fremont Unified School Dist. v. Student (OAH 2009) What Constitutes an “Unreasonable Delay”

in Responding to Parents’ IEE Request?

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Case #1: Delay in Responding to IEE Background and Issue

District must, "without unnecessary delay," either initiate due process or provide IEE

Case examines actions (and inactions) during four-month period between IEE request and due process

Fremont Unified School Dist v. Student (OAH 2009) Case No. 2009040633, 109 LRP 31206

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Case #1: Delay in Responding to IEE Facts

December: Parents ask for IEEDecember: District agrees to fund IEE but

with different agency and location January: Parents lose forms; District re-

mails January: Parents ask for agency criteria


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Case #1: Delay in Responding to IEE Facts

January – April: Sporadic communication; new program specialist assigned

February: Parents again ask for criteriaMarch: District sends SELPA excerpt on

IEEs, but no criteriaApril: District sends PWN refusing IEE


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Case #1: Delay in Responding to IEE Findings

Some portions of delay were fault of both parties

But Parents sought information that District never provided and had to start new dialogue with new staff

District ordered to fund speech and language IEE


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Case #1: Delay in Responding to IEE Lessons Learned

Long delays usually result in trouble

Avoid lengthy communication gaps

Perception of good-faith negotiations might not be viewed as such by parents


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Case #1: Delay in Responding to IEE Lessons Learned

Train team leaders on how to respond to IEE requests

Make sure evaluation criteria is documented and up to date – take into account retirements, relocation of evaluators


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Case #1: Delay in Responding to IEE Other Cases

C.W. v. Capistrano USD (C.D. Cal. 2012): Taking 41 days to respond to IEE request was not “unreasonable delay”

Los Angeles USD (OAH 2011): 53 day wait was not unreasonable because school wasn’t in session for 24 of those days

J.P. v. Ripon USD (E.D. Cal. 2009): Waiting more than two months before filing not unreasonable as parties were negotiating

Pajaro Valley USD v. J.S. (N.D. Cal. 2006): 11 week delay without valid explanation why was unreasonable

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Case #2: Anaheim City School Dist. v. Student (OAH 2010)

What Can Go Wrong When District Rejects IEE and Defends Its Evaluation at Due Process Hearing?

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Case #2: Defense of Assessment Background and Issue

Districts that reject IEE request must file for due process to defend assessments

ALJ examined District’s psychoeducational assessment and FBA, with mixed results

Anaheim City School Dist. v. Student (OAH 2010) Case No. 2010010357, 110 LRP 36310

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Case #2: Defense of Assessment Facts

District proposed various assessments for 8-year-old Student with autism and language delays

Retained clinical psychologist for psychoeducational assessment

Psychologist made some scoring errors and didn’t follow certain protocols


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Case #2: Defense of Assessment Facts

IEP team adopted psychologist’s recommendations of SDC placement with ABA

Before IEP completed, District also conducted FBA

Parents objected to both assessments; asked for IEE


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Case #2: Defense of Assessment Findings

Psychoeducational assessment: Not conducted by credentialed school psychologist Scoring errors shaped IEP teams services decisions

Must pay for psychoeducational IEE; FBA met all the rules


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Case #2: Defense of Assessment Lessons Learned

Thoroughly review assessmentsbefore denying IEE request

If in doubt, weight costs/benefits

Caution IEP team against “off-the-cuff” yes/no responses to IEE requests


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Case #2: Defense of Assessment Other Cases

Encinitas USD (OAH 2012): Parent unsuccessfully claimed assessors should have created artificial stressful situations to elicit specific responses

Brea Olinda USD (OAH 2011): Parent’s dispute concerned IEP team’s interpretation of assessments, not their substance; IEE denied

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Case #3: Placentia-Yorba Linda Unified School Dist. v. Student (OAH 2012) Do Parents Have an

UnlimitedAmount of Time to Request an IEE?

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Case #3: Timeliness of IEE Request Background and Issue

How long is too long for parents to wait before requesting district fund an IEE?

ALJ asked to apply IDEA’s two-year statute of limitations for due process actions

Placentia-Yorba Linda Unified School Dist. v. Student (OAH 2012) Case No. 2012051153, 112 LRP 41903

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Case #3: Timeliness of IEE Request Facts

January 2010: District completes triennial assessments for 16-year-old Student with autism

May 2012: Parents inform District of disagreement with assessments, request IEE


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Case #3: Timeliness of IEE Request Facts

Three weeks later: PWN refusing to fund IEE

Offers to conduct early triennial assessment

Files for due process (not to defend assessment but to determine adequacy of response)


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Case #3: Timeliness of IEE Request Findings

District does not need to initiate hearing when IEE request made for assessment more than two years old

Neither Congress nor California intended parents to be able to request IEEs “in perpetuity”


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Case #3: Timeliness of IEE Request Findings

Exception to two-year limit not applicable; Parent not prevented from exercising rights

ALJ refused to require that District reference two-year limit on IEEs in procedural safeguards notice


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Case #3: Timeliness of IEE Request Lessons Learned

Keep tabs on conditions thatmight require reassessment; may head off delayed IEE request

Objecting to IEE on timeliness grounds fruitful strategy; difficult to defend long-ago assessment


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Case #3: Timeliness of IEE Request Other Cases Applying Two-Year

Limit

Student v. Sacramento Unified School District (OAH 2012) Case No. 2012040379, 112 LRP 57711

Atlanta Pub. Schools (SEA GA 2007) 107 LRP 59591 Salem Keizer School Dist. (SEA OR 2004) 109 LRP

65863

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Case #4: Student v. Garvey School Dist. (OAH 2010) To What Degree Do IEP

Teams Have to “Consider”a Privately Obtained IEE?

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Case #4: Obligation to ‘Consider’ IEE Background and Issue

One of very few decisions addressing what it means to adequately “consider” IEE

Did District denied FAPE by depriving Parents’ evaluator the opportunity to present results of IEE at IEP meeting?

Student v. Garvey School Dist. (OAH 2010) Case No. 2010011021, 110 LRP 44204

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Case #4: Obligation to ‘Consider’ IEE Facts

Parents obtained social emotional development assessment at their own expense

District therapist reviewed report prior to IEP meeting

Time limitations prevented private assessor from explaining report to IEP team


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Case #4: Obligation to ‘Consider’ IEE Facts

Reconvened meeting: Private assessor began discussion of report 10-15 minutes before end of meeting

Time expired again before she could complete presentation and make recommendations

Parent claimed IEE not adequately “considered”


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Case #4: Obligation to ‘Consider’ IEE Findings

IEE was adequately “considered”

District therapist developed two speech goals based, in part, on IEE

Testimony: IEP team read all written reports submitted


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Case #4: Obligation to ‘Consider’ IEELessons Learned

Meaning of “considered” determined on case-by-case basis – document IEP meeting with accurate minutes

Never ignore an IEE; distribute report to all concerned

Remember: “Consider” doesn’t mean “accept”


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Case #4: Obligation to ‘Consider’ IEE Other Cases on Meaning of ‘Consider’

T.S. v. Board of Educ. of Town of Ridgefield (2d Cir. 1993) 20 IDELR 889: Not “every member of a body must read document . . . in order to collectively consider it”

G.D. v. Westmoreland School Dist. (1st Cir. 1991) 17 IDELR 751: “Consider” does not always require “substantive” discussion

Evans v. District No. 17 (8th Cir. 1984) 559 IDELR 381: IEE properly considered when read by special education director

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Take Aways . . .

Consider all factors in IEE decision-making

Delays can be costly Make sure IEP team

knows how to respond Always keep lines

of communication open

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .