IDEA Complaint Decision 04-061

On December 23, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Pardeeville Area School District. This is the department's decision regarding that complaint. The issues are whether the district developed an individualized education program (IEP) for the 2004-2005 school year to meet a student's unique needs and properly responded to parental requests in the fall of 2004 for an independent educational evaluation (IEE).

The IEP team met on June 7, 2004, to review the student's current IEP and to develop an IEP that would be in effect for the 2004-2005 school year. In doing so, the IEP team considered information provided by the parent, reviewed the student's progress, and considered different reading strategies and programs. The IEP developed included a statement of the student's present levels of educational performance, measurable goals, short-term objectives, and the specific special education and related services to be provided. The goals relate to educational needs described in the present levels.

On September 3, 2004, the IEP team met to discuss the student's needs in reading, and on November 1, 2004, the IEP team met to consider the parent's request that the district pay for a private tutoring program. The team reviewed the student's progress, the services he was currently receiving, and determined that the student was benefiting from the current educational program. Team members indicated that the student was progressing well educationally, behaviorally, and socially. After each of these meetings, the student's IEP was slightly revised based on the discussions and information provided, and the parent received a copy of the IEP with the notice of placement.

Attached to the November IEP is a notice of response to an activity requested by a parent notifying the parent of the district's decision to refuse payment for the private tutoring. Information documented in the student's IEPs confirms that the student has been making continued progress, despite significant absences from school. In sum, the department concludes that the district properly developed the student's educational program for the 2004-2005 school year by following the required procedures, reaching determinations reasonably supported by student-specific data, and offering services required to address needs resulting from the student's disability.

Next, the complainant alleges the district failed to respond to her requests for an IEE. A parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency. The federal regulations specify that when a parent requests an IEE, the district must provide the parent information about where an IEE may be obtained and district criteria applicable for IEEs. The regulations further state that although the district may ask why the parent objects to the district evaluation, the district cannot require an explanation, and the district must, without unnecessary delay, either provide the IEE at public expense or initiate a due process hearing to defend its evaluation.

In an electronic mail dated July 21, 2004, the parent stated that if the district did not recognize testing the student received outside of school, she then would be requesting an IEE. In an electronic mail, dated with the same date, the district informed the parent that the IEP team did consider the outside information at the June 7, 2004, IEP meeting. The district also reiterated its commitment to have a district reading specialist evaluate the student and to include the reading specialist as part of the IEP team that would meet in the beginning of the school year. The July IEE conditional request was ambiguous and district attempted to address the parent's concern in its response.

However, the parent repeated her request for an IEE in an e-mail dated September 16, 2004. At this time the parent stated "I am going to now ask you for an IEE again." The district stated that this September 16th e-mail request led to a discussion of the issue at the November 1, 2004, IEP meeting. Based on this meeting, the district believed that the issue had been resolved because the parent had indicated that she did not feel there was need for an IEE. Attached to the November IEP is a notice of response to an activity requested by a parent indicating that this was the agreement.

The district contends that the parent's IEE requests were not in response to the student's last evaluation conducted in February 2002. Rather, the requests were prompted by the parent's disagreement with the IEP team's response to recommendations from an outside evaluator arranged by the parent. The parent's electronic mail correspondence expressed 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. Furthermore, the comments and analysis to the current federal regulations and clarification from the United States Department of Education appear to give districts minimal unilateral authority to refuse a request for an IEE. The federal regulations direct the district either to pay for the IEE or to initiate a hearing. In addition, although the district contends that the evaluation was untimely because it occurred more than two years after the evaluation, there is nothing in federal law that imposes such a time limit. The federal regulations specify that except for the criteria described in paragraph (e)(1) of the regulatory section, "a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense."

The department acknowledges the district's multiple efforts to address the parent's concerns about her child's educational program. The department concludes the July 21, 2004, request for an IEE was ambiguous. However, especially given the July request, the department concludes the district did not meet the requirements for responding to the September 16, 2004, IEE request. The district did not provide the parent with the required information, and by waiting until the November meeting, the district did not respond to the request without unnecessary delay. Since the complaint was filed, the parent has requested an IEE. The district has agreed to include an independent educational evaluation as part of the district's pending three-year reevaluation. No further corrective action is required.

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

//signed 2/21/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pmw

For questions about this information, contact Patricia Williams (608) 267-3720