Holding the Torch

INDEPENDENT EDUCATIONAL EVALUATIONS FOR SPECIAL EDUCATION STUDENTS ARE TO BE WITHOUT COST TO THE PARENTS

When parents disagree with the results of a school evaluation for special education students, the parent may request an independent educational evaluation (IEE) under the IDEA. (34 CFR 300.502.)   The independent evaluation is to be conducted by a qualified professional that is not employed by the schoool district and the cost is at public expense. This means that the school must pay the full cost of  the evaluation or ensure that there is no cost to the parent. (34 CFR 502(a)3(ii))   If the school disagrees, the school must file a request for a due process hearing to resolve the issue.
  
Recently we have become aware that some school districts in Virginia are setting caps on the amount that the school will pay for an IEE.  In a recent case, the school district limited the payment to $300 and gave the parent a referral to two “independent” providers.  One provider never returned the parent's phone calls and the other declined to do the evaluation for $300.  In this situation, the school wrongfully set a limit that effectively deprived the parents of a right under the IDEA.  When confronted, the school modified it's position. There is nothing in the law that allows the school to set an atificially low “cap” for the obligation to ensure that the IEE is conducted at public expense and without cost to the parent.

IMPORTANT SPECIAL EDUCATION CASE DECIDED IN FAVOR OF PARENT IN THE WESTERN DISTRICT COURT IN VIRGINIA

A recent decision by the US District Court for the Western District of Virginia ruled in favor of a student and parent that challenged the Bedford County School Board under the IDEA for failure to provide the special-education student with FAPE.  In the case of DB v. Bedford County School Board, , Judge Norman Moon determined that the School Board failed to evaluate DB for special education eligibility under the category of Specific Learning Disability (SLD) even though the school had conducted psychological testing and made the determination that the child was eligible under the category of Other Health Impaired (OHI). The parent had repeatedly sought a determination for SLD.  When the student continued to make no progress in the school curriculum, the parent then placed the child in a private school program.

In this opinion, the court goes to great lengths to stress the responsibility of school districts to examine all evidence related to the different categories of eligibility for special education students. The court stressed that each of the categories for eligibility is a distinct and separate identification of need and cannot be ignored when there is evidence available to consider one or more categories of eligibility.

In addition, the Court gives a clear an unequivocal opinion about the inadequacy and detriment of "social promotion" which occurred in this case. Responding to the argument that the Due Process Hearing Officer found that DB had been promoted to the next grade every year, the Court ruled that “the HO failed to comprehend that this token advancement documents, at best, a sad case of social promotion".  Referencing a 2005 4th Circuit case from Henrico County, the Court noted that the Congressional intent under IDEA "did not mean that a school system could discharge its duty under the (Act) by providing a program that produces some minimal academic advancement, no matter how trivial".

This case is a significant decision regarding the requirements of school districts to assess eligibility and to provide meaningful educational programming special needs children.