- During the period October 25, 1998, to October 24, 2001, the district failed to include in the individualized education program (IEP) of a child with a disability proper statements of the child's present levels of performance, annual goals, and short-term objectives, and the amount of special education and related services, supplementary aids and services and program modification and supports for school personnel to be provided to the child.
- During the period October 25, 1998, to October 24, 2001, the district failed to properly inform the child's parent of the child's progress toward his annual goals.
- During the period October 25, 1998, to October 24, 2001, the district failed to implement behavioral interventions, strategies and supports included in the child's IEP.
- During the period October 25, 1998, to October 24, 2001, the district failed periodically to convene an IEP team meeting to review the child's IEP to determine whether the child's annual goals are being achieved.
- During the period April 2001 to October 24, 2001, the district failed to respond properly to parent requests for IEP team meetings to review and, if necessary, revise her son's IEP.
- During the period April 2001 to October 24, 2001, the district failed to provide notice to the parent a reasonable time before the district proposed to change her son's IEP and failed to respond properly to the parent's request to review and receive copies of her son's education records.
- During the period April 2001 to October 24, 2001, the district failed to respond appropriately to a request for an independent educational evaluation (IEE) at public expense submitted by the parent in August 2001.
If a parent requests an independent educational evaluation at public expense, there is no requirement under Part B of the Act that the parent specify areas of disagreement with the public agency's evaluation as a prior condition to obtaining the independent educational evaluation. Thus, unless a public agency chooses to initiate a due process hearing in accordance with paragraph (b) of this section, the agency must respond to the parent's request by insuring an independent educational evaluation is provided at public expense in a timely manner. A public agency may not impose conditions on obtaining an independent educational evaluation, other than the agency criteria.When the final regulations were issued in March 1999 the Department of Education indicated that all explanatory notes had been deleted. Information included in the draft notes either was incorporated into the final regulation language or removed. The final regulation includes the following:
If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.The comments and analysis which explains this change reads:
With respect to Note 1, while it would be helpful for parents to explain their disagreement over a public evaluation, there is nothing in the statute which prevents parents from obtaining an IEE if they did not express their concerns first. Therefore, Note 1 would be deleted and the regulation changed to state that the public agency may request an explanation from the parents regarding their concerns when the parent files a request for an IEE at public expense. However, such an explanation may not be required of the parents and the provision of an IEE, or initiation of a due process hearing to defend the public evaluation, may not be delayed unreasonably regardless of whether or not the parent explains his or her concerns to the public agency.The district appears to take the position that the parent never has stated that she disagrees with the district's evaluation of her child. The district also notes that while the IEE was conducted in March 2001, it was not until August that the parent requested payment from the district for the IEE. The department agrees that the parent has not directly and specifically stated that she disagrees with a district evaluation. However, in May and August 2001 the parent did specifically express in writing her concerns that for four years her child had not made educational progress in the areas addressed in his IEP. The May letter mentions that she plans for him to receive private assistance over the summer and expresses her belief that the district should pay for the service. These letters clearly express dissatisfaction regarding the nature and extent of the special education services that the child had been receiving. Federal regulation defines "evaluation" to mean procedures used to determine whether a child has a disability and the nature and extent of the special education and related services the child needs. The federal regulations direct the district either to pay for the IEE or to initiate a hearing. The arguments made by the district regarding the sufficiency of its evaluation are properly directed to a hearing officer, not to the department in the context of an IDEA complaint The district is directed to respond within 10 days of receiving this decision to the parent's August 2001 request for an IEE either by paying for it or by initiating a due process hearing regarding the request. Further, the district is directed to submit to the department, within 30 days of the date of this decision, an assurance that if a parent requests an IEE at public expense, without unnecessary delay it either will initiate a hearing to show its evaluation is appropriate or ensure that an evaluation is provided at public expense. This concludes our review of this complaint. //signed CST 6/12/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy Dec/jrm