Court Rules Parents Not Entitled to IEE at Public Expense

A Pennsylvania district court found that parents of a student who had suffered three concussions were not entitled to an independent education evaluation (IEE) at public expense because they disagreed with the evaluation team’s IDEA classification.

The parents of a gifted high school student originally requested an evaluation in 2016. The district did not find the student eligible under IDEA but instead created a 504 plan for occupational therapy (OT) services.

The next year, the parents again requested an evaluation, but placed conditions of the types of testing the district could conduct. When the evaluation was completed, the district found the student eligible with an autism classification. The parents disagreed with the classification and the district offered on three separate occasions to conduct a reevaluation to consider their concerns, which they refused each time.

Nearly two years later the parents requested an IEE since the district did not use a traumatic brain injury (TBI) as the student’s disability category. It is noteworthy that the TBI was not medically diagnosed but was assumed by parents as a result of the three concussions suffered by the student a year earlier.

In declining the parent’s request for an IEE, the district filed due process to defend its evaluation. The state hearing officer ruled in favor of the district and the parents appealed.

Upon review, the federal court found that since the district conducted the evaluation based upon an area of suspected disability, and since there was no information presented to the district team to cause them to suspect TBI, the evaluation conducted by the district was justified. The court noted that an evaluation should be tailored to the specific areas in which a student is struggling but need not be designed to identify and diagnose every possible disability.

What this Means for Your District

The Pennsylvania court reiterated that a parent can request an IEE up to the time for the reevaluation. However, in looking at the remedies for the parents, the court found that since a new evaluation was due, the IEE request was moot. More importantly, schools should not feel compelled to change the disability classification of a student due to parent demand. Any such change must be based first upon suspicion of a disability and then on the assessment conducted by the district.

New Federal Guidance from OSEP: a COVID-19 Q&A

The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.

In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”

To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.

Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.

The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).

The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.

IDEA Flexibility Amidst COVID-19

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress on March 27, 2020. Part of the act directs U.S. Education Secretary Betsy DeVos to submit a report to Congress. The report, that must be submitted by the end of April, is to make recommendations for any additional waivers that might be needed under IDEA, in direct response to the COVID-19 pandemic. There is reason to believe that a concerted effort on the part of school districts could result in much-needed flexibility during this unprecedented time.

The National Association of State Directors of Special Education (NASDSE) and the Council of Administrators of Special Education (CASE) jointly wrote a letter in anticipation of the report the DeVos will submit. The letter asks for flexibilities for specific IDEA provisions that have been affected by COVID-19. Those provisions include timelines, procedural activities, and fiscal management. Other groups, including parent groups pushing back hard against reasonable adjustments in light of the global pandemic, are also lobbying for what flexibility should entail.

Concerns that we are hearing from clients often center on flexibility related to evaluation timelines (especially initial evaluations), recognition that what constitutes a free, appropriate, public education during the health emergency need not match what would be provided under regular operations, and realistic expectations for compensatory education upon resumption of regular school operations. If you would like to contribute to the conversation on what the flexibilities might look like, now is the time. Get in contact with professional organizations to lobby for what you feel strongly about. Your opinion matters.