Recent court and agency decisions show that the law’s child find duty to locate, evaluate and identify is alive and well. This presentation will examine ….
I. Consent for an Evaluation
68 IDELR 141
Letter to Skyer
Office of Special Education Programs
August 18, 2016
Ruling
A parent has the right to request and receive an evaluation of an infant or toddler under Part C at any time during a screening conducted by a lead agency or early intervention service provider, OSEP stated. Moreover, OSEP informed a parent’s attorney, the parent has the right to request an evaluation even if the screening indicates the child isn’t suspected of having a disability.
Meaning
A lead agency or EIS provider may not use the fact that it’s conducting or has conducted a screening process to delay or deny a parent’s request for an evaluation of an infant or toddler. Therefore, staff members should avoid telling parents who request an evaluation that their child is only entitled to a screening or that the child is not entitled to an evaluation because the screening is in process or the screening failed to identify a basis for suspecting a disability.
Case Summary
Lead agencies are free to adopt screening procedures to identify potentially eligible infants and toddlers. But they may not use that process, or even the outcome of the screening, to limit a parent’s right to request an evaluation, OSEP told a parent’s attorney. In her letter to OSEP, the attorney asked whether an early intervention official would be correct in telling a parent that the parent’s child will only be “screened” to determine eligibility. OSEP stated that agencies have the option to adopt screening procedures to determine whether a child under the age of three is suspected having a disability. 34 CFR 303.320. However, if the lead agency or EIS provider proposes a screening, it must provide the parent prior written notice and obtain parental consent before conducting the screening. If the screening indicates the child is suspected of having a disability, OSEP observed, the agency must evaluate. If the screening indicates the child isn’t suspected of having a disability, the agency or EIS provider must provide the parent notice of that determination. “Importantly, if the parent of the child requests and consents to an evaluation at any time during the screening process, an evaluation of the child must be conducted even if the lead agency or EIS provider has determined that the child is not suspected of having a disability,” OSEP Acting Director Ruth E. Ryder wrote. “Parents often can identify or suspect developmental delays in their children that may not be identified through a screening.” Given the small window of opportunity for infants and toddlers to receive Part C services, she remarked, parents should be able to request and receive an evaluation without the potential delay of seeking an evaluation through a due process hearing.
116 LRP 20230
Upper Darby School District
Pennsylvania State Educational Agency
April 20, 2016
Ruling
A hearing officer granted a Pennsylvania district permission to conduct an initial evaluation of a kindergartner, despite the parents’ refusal to consent. The IHO concluded that the requested evaluation was appropriate and should be conducted.
Meaning
It’s within a hearing officer’s discretion whether to permit a district to override a parent’s lack of consent to an initial evaluation. But districts can improve their chances with the hearing officer by supplying evidence of their unsuccessful efforts to serve the child with general education interventions. Here, the child engaged in eloping and other dangerous behavior. The need to evaluate the student was bolstered by testimony that the child’s behavior continued despite the provision of interventions, including a behavior intervention plan, and only abated when the district assigned the kindergartner a one-to-one aide.
Case Summary
While a father asserted that his kindergartner’s conduct was simply that of a young child learning to behave, an IHO agreed with the Pennsylvania district that the behaviors were “significantly out of the ordinary.” Noting that general education interventions failed to resolve the student’s behaviors, the IHO granted the district permission to conduct an initial evaluation without the parents’ consent. Since enrolling in school, the child engaged in elopement, threw objects, and was aggressive toward others. Those behaviors continued despite the provision of a BIP and other interventions. When the parents declined to consent to an initial evaluation, the district filed a due process complaint seeking permission to evaluate without consent. If parents refuse to consent to an evaluation, the IHO explained, a district may request due process seeking a hearing officer’s permission to override the parents’ decision. 34 CFR 300.300(a)(3). In granting the district’s request, the IHO pointed out that, based on the testimony of school staffers, it would be a mistake to attribute the student’s behavioral challenges merely to the fact that he was, as his father suggested, just a young child gradually learning how to behave. Rather, the evidence indicated that the behaviors were not consistent with the child’s age, grade, or developmental level, the IHO stated. Moreover, staff members’ testimony demonstrated that the behaviors interfered with the student’s ability to benefit from his education. The IHO also noted that some of the unpredictable behaviors created safety concerns. “[E]xpert educators testified credibly that they could not get these behaviors under control unless they could better understand the cause,” the IHO wrote. Finally, although the provision of a one-to-one teaching assistant resulted in some improvement, the IHO observed, there was no guarantee the aide would continue to attend the child unless the provision of an aide was formalized in an IEP.
67 IDELR 250
Jefferson County School District R-1
Colorado State Educational Agency
December 29, 2015
Ruling
Colorado Administrative Law Judge Matthew E. Norwood granted a district’s request to evaluate a student with TBI despite the parent’s refusal to consent. He ordered the release of all documents, reports, evaluations, and other records related to the teen’s residential and day programming and an evaluation of the student’s academic, motor, communication, and social-emotional skills and needs using accredited evaluators of the district’s choosing.
Meaning
If a parent consents to an evaluation but includes so many notations on the form and imposes so many conditions on the evaluation that it alters the district’s approach, the district may want to consider the response to be a refusal to consent. It can then seek to override the parent’s refusal. Here, when the parent conditioned her consent on the place of the evaluation and on what information evaluators would be privy to, the district filed for due process. It could evaluate after showing its methods were reasonable and focused on the teen’s disability and potential educational needs.
Case Summary
A Colorado district could evaluate a student despite the parent’s lack of consent. The student with TBI, allergies, seizures, and hemiparesis was publically placed in an out-of-district, residential high school after engaging in violent and threatening behaviors. Believing that her 18-year-old son was not safe, the student’s mother sought to change her son’s placement. The IEP team met but the resulting IEP called for the teen to remain in the residential placement. The parent objected and enrolled him in the public school district where the student was residing in an apartment. When the new district sought consent to evaluate the teen, the mother insisted that the district evaluate the student at the high school. The district planned to conduct the evaluations at a day program setting. After discussions, the district again sought the parent’s consent. Although she signed the form, she made many written interlineations on it and imposed conditions on the evaluation. The district filed a complaint to override the parent’s refusal to consent pursuant to 20 USC 1412(a)(1)(D)(ii)(I). The ALJ sided with the LEA. First, the ALJ found that the evaluations sought by the district were reasonable and properly focused on the teen’s disability and potential educational needs. Secondly, he noted that the student can be volatile and has difficulty in new situations so an evaluation must be performed in a familiar setting to gain valuable information. The most familiar setting to conduct the evaluation was the setting the district proposed, he opined. That setting also had trained personnel to help deescalate the student if needed, the ALJ pointed out. After issuing the order to override the lack of consent for evaluation, the ALJ specified that the district was to have access to the student’s relevant service providers, to information or records covered by HIPAA, and to the student in his residential and day programs.
9 GASLD 16
Fulton County School District
Georgia State Educational Agency
October 30, 2015
Ruling
Parents’ choosing not to cooperate with a Georgia district’s efforts to evaluate a high school student with an unspecified disability meant that, in the eyes of an ALJ, the district could go forward with its plan to complete the evaluation with an evaluator of its sole choosing. The ALJ granted the district’s motion for summary determination and denied the parents’ motion for dismissal.
Meaning
While evaluations and triennial reevaluations are necessary for students to receive services under the IDEA, parents’ refusal to consent to evaluations means that a district cannot be found to deny FAPE. Districts are not required to provide services to a child whose parents have refused to consent to a reevaluation. As this case demonstrates, the refusal does not have to be an explicit revocation but can be a implicit. This district endeavored to complete a pupil’s triennial evaluation, but the parents prevented it from doing so by placing conditions on the evaluation.
Case Summary
When parents of a high school student with an unspecified disability objected to a district’s efforts to complete a triennial evaluation, the parents’ lack of cooperation interfered with the district’s attempt to provide FAPE. According to an ALJ, while the parents never explicitly revoked consent for evaluation, their lack of good faith was an implicit revocation that entitled the district to an order requiring the reevaluation to take place at a time, date, and location of the district’s sole choosing. Whenever the district attempted to complete the evaluation, the parents placed conditions on it. These included complaints about the time out of class it was costing the student. The district suggested before school, during lunch, after school, or as part of the student’s regular speech therapy session as times for conducting the evaluation. The parents would not consent to these times and also complained about the evaluators the district suggested. Ultimately, after failing to gain the parents’ cooperation, the district filed for due process. Under the IDEA, a district must complete its triennial reevaluation requirements to avoid denying a student FAPE, but this requirement does not mean that a district has to provide services when parents refuse to consent to a reevaluation, the ALJ noted. The ALJ cited the parents’ ceasing to cooperate with the district and placing additional conditions on completing the evaluation as reasons for finding that the parents implicitly revoked consent. Additionally, the ALJ pointed out that the parents refused to let the district choose who completed the evaluation and advised the student not to participate in any evaluation conducted by a certain evaluator. The ALJ also explained that the parents were uncooperative in scheduling an eligibility/IEP meeting because they never provided the district with any information regarding their availability and reported that they could not provide dates before securing counsel. In conclusion, the ALJ ordered the evaluation to be completed by an evaluator of the district’s choosing at a time, place, and location that suited the district.
66 IDELR 205
School District of the Chathams
New Jersey State Educational Agency
June 4, 2015
Ruling
Administrative Law Judge Ellen S. Bass ordered the parents of a 12-year-old student with OHI to consent to several assessments as part of the student’s triennial reevaluation. She also denied the parents’ request for an independent neuropsychological evaluation, finding that such an evaluation was unnecessary.
Meaning
Existing data, classroom observations, and input from teachers and related service providers may not always give an IEP team the information it needs to complete an appropriate triennial reevaluation. If a district proposes additional assessments and a parent refuses to consent, the district may file for due process. By presenting evidence that the additional psychological, educational, and social assessments it was proposing would help it better understand the student’s current educational and instructional needs, this district was able to obtain authorization to proceed despite the parents’ objection to the assessments.
Case Summary
A need for information on the current educational, social, and psychological needs of a 12-year-old boy with OHI convinced an administrative law judge to allow the boy’s New Jersey district to proceed with the testing despite the parents’ lack of consent. The student last underwent psychological, educational, and social evaluations when he was completing third grade in 2012. As part of a triennial reevaluation, the district sought parental consent to update the boy’s educational testing, as well as obtain a social history update, and current information from the school psychologist on the boy’s social and emotional functioning. When the parents would not consent to the additional assessments and instead requested an independent neuropsychological evaluation, the district filed for due process. ALJ Ellen S. Bass explained that while parents must generally consent to additional formal assessments, a district may file for due process when consent has been withheld. Although the parents were given the opportunity to appear and present evidence at the due process hearing, they declined. As a result, the ALJ heard the district’s evidence. According to a district assistant superintendent, who was also a licensed school psychologist, the district’s need for the additional assessments was to “better understand [the student’s] current educational status and his instructional needs.” He also opined that the independent testing sought by the parents would not assist the IEP team in planning for the student and was therefore unnecessary. Based on the evidence in the record, the ALJ concluded that the district’s request was “reasonable, appropriate, and necessary to guide the IEP Team’s programmatic decision-making.” She therefore ordered the parents to consent to the requested testing and directed that the assessments be completed within 60 days. Because there was no evidence an independent evaluation was warranted, the ALJ denied the parents’ request.