1. Hot Legal Topics Heather M. Edwards, Attorney at Law Girard & Edwards El Dorado County Charter SELPA Steering Committee May 20, 2015

2. INDEPENDENT EDUCATIONAL EVALUATIONS

3. What is an IEE? An IEE is an evaluation conducted by a qualified examiner who is not employed by the LEA. – A parent has the right to an IEE at public expense only if the parent disagrees with an evaluation obtained by the LEA. 34 CFR § 300.502(a)(1).

4. IEE Information Upon request for an IEE, the LEA is required to provide parents with information about where an IEE may be obtained. – This list must be in accordance with LEA criteria as to: 1.Location (usually nearby) 2.Qualifications of the examiner (must be the same as LEA evaluator); and 3.Cost

5. IEE Information Cont. This information should include a list of qualified assessors in your area, as well as pricing guidelines and other standards the LEA has adopted. The parent must be allowed to select an evaluator who meets LEA criteria, but is not on the list. The parent must be allowed to demonstrate unique circumstances for not meeting District criteria.

6. Parent’s Disagreement The LEA may ask for the parent's reason why he or she objects to the LEA’s evaluation. However, an explanation by the parent may not be required (emphasis added). 34 CFR § 300.502(b)(4).

7. LEA Requirements If a parent requests an IEE at public expense, the school must, without unnecessary delay, either: 1.Initiate a Due Process hearing to show that its evaluation is appropriate; or 2.Pay for an IEE. 34 CFR § 300.502(a)(2).

8. Due Process Hearing If the LEA decides to initiate a hearing and the final decision is that the LEA’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. 34 CFR § 300.502(b)(3); E.C. § 56329(c). However, if the hearing officer determines an IEE is warranted because the LEA’s assessment is not appropriate, then the cost of the evaluation is at public expense. 34 CFR § 300.502(d).

9. Parent Initiated Evaluations If the parent obtains an independent educational evaluation at private expense and shares the results of this evaluation with the LEA, the school must consider the results (regardless of whether the LEA paid for the evaluation). 34 C.F.R. 300.503(b)(5) However, the specialist who conducted the IEE must be found to be qualified under LEA criteria.

10. Reimbursement If the parents present an evaluation that the LEA previously refused to conduct, the LEA may be required to reimburse the parents for the costs of this evaluation - if it is determined by a hearing officer that the evaluation provided valuable information which impacted the child's education, services, or placement.

11. Do parents have to request an IEE in writing? No. There is no requirement that a parent’s request for an IEE be “in writing.” However, it may be good practice for parents to put their request in a letter to the LEA stating: – The LEA evaluation was inappropriate – They are requesting an IEE at public expense – A list of reasons why they feel the LEA evaluation was inappropriate (although this is not required) – The kind of independent evaluation they are seeking – Requests for information about where an IEE may be obtained

12. May the LEA require the parent to explain what areas of the LEA’s assessment the parent disagrees with? No. The LEA may ask the parent to state his or her reasons for disagreement with the assessment, however, the LEA may not require the parent to provide an explanation. See 34 CFR § 300.502(b)(4).

13. Common Misconceptions LEAs may not delay granting or denying an IEE for any of the following reasons: – Need to discuss of the LEA’s evaluation at an IEP meeting – Need the parent to provide a written statement of its disagreement with the LEA’s evaluation, or – Need the parent to provide notice of their request for an IEE in an IEP team meeting

14. Is there a time period within which a parent must request an IEE after an LEA completes its assessment? No, the regulations do not specify a time period for which a parent has to make their request. The LEA may not impose timelines related to a parent obtaining an IEE at public expense. See §300.502(e)(2).

15. 2 Year Statute of Limitations An LEA is not required to initiate a hearing where the IEE request was made concerning an LEA assessment more than two years old. (Letter to Thorne (Thorne) (OSEP 1990) 16 IDELR 606, 16 LRP 838.) The issue of the applicability of the statute of limitations to IEE requests was examined in Placentia-Yorba Linda Unified School Dist. (Placentia-Yorba Linda) (2012) OAH Case No. 2012051153. Relying on Thorne, Placentia-Yorba Linda held that the two-year statute of limitations applied to IEE requests and when an IEE request is made outside the statute of limitations, the LEA is not required to fund the IEE or file for due process to defend the appropriateness of its assessment. The ALJ in that case reasoned since the purpose of an IEE is to permit a parent to challenge test results and recommendations “on present district assessment findings,” it would “serve no purpose to challenge an assessment so old it no longer applied to a child because it no longer addressed the child’s present abilities and unique needs.” (Id.) To hold otherwise would lead to absurd results. LEAs might be forced to litigate the appropriateness of assessments decades old and long since superseded by more recent assessments.

16. What steps must an LEA take when it wants to deny a parent request? If the LEA determines its evaluation is appropriate and wishes to deny a parent request, the LEA is required to initiate a Due Process hearing to demonstrate their evaluation is appropriate.

17. How soon after a parent’s request for an IEE does the LEA need to provide the IEE? LEAs must either file for due process or ensure the IEE is provided without unnecessary delay. OAH recently held that a charter school was not required to fund an IEE despite filing a request for due process 24 days after a second- grader’s parent requested an IEE at public expense. [Celerity Educational Group, OAH Case No. 2014050842 (September 19, 2014).] A school district’s request for due process filed more than two months after receiving an initial request for IEE was found to be timely because the parties were communicating regarding the request for IEE in the interim. J.P. v. Ripon Unified School District, 2009 WL 1034993 (E.D. Cal. 2009) One court found unnecessary delay when a school district waited 3 months after a request for an IEE at public expense before filing for due process. Pajaro Valley Unified Sch. Dist. v. J.S., 47 IDELR 12, 50 (N.D. Cal. 2006).

18. Does the parent get to choose the evaluator? Generally, yes. The LEA is required to pay for the particular specialist requested by the parent provided that the parent’s requested evaluator otherwise meets legal requirements (i.e. is competent, licensed, etc.) and fulfills LEA criteria (i.e. qualifications, location, cost, etc.) Also, the LEA must allow parents the opportunity to demonstrate that unique circumstances justify the selection of an evaluator that does not meet LEA criteria.

19. Who is qualified to conduct an IEE? A specialist who is competent, licensed, and has proper qualifications to conduct the particular assessment requested. The specialist must also meet LEA criteria.

20. Is an IEP team required to follow the recommendations of an IEE? No, the IEP team is not required to follow the recommendations of an IEE. However, any IEE must at least be considered at the IEP meeting.

21. Are LEA’s required to reimburse parent’s for privately obtained assessments? No. However, an LEA may be required to reimburse a parent for a privately obtained assessment only if the LEA previously refused to conduct an assessment and the hearing officer determines the privately obtained assessment provided valuable information.

22. What happens if a parent requests an IEE in an area not assessed by the LEA? In February 2015, OSEP provided guidance that LEAs must ensure that evaluations are sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child's special needs, whether or not commonly linked to the disability category in which the child has been classified. [See 34 CFR § 300.304(c)(4) and (6).] When a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs. Letter to Baus, 65 IDELR 81 (February 23, 2015).]

23. May the LEA restrict the independent evaluator from conducting classroom observations? If the LEA observed the pupil in a classroom setting while conducting its assessment, or if its assessment procedures make it permissible to have in-class observation of a pupil, an IEE examiner must be given an equivalent opportunity to observe the pupil. See E.C. § 56329(b).

24. How often can a parent request an IEE? A parent is entitled to only one IEE at public expense each time the LEA conducts an evaluation with which the parent disagrees. See 34 CFR 300.502(b)(5); Education Code § 56329(b)

25. UNILATERAL PLACEMENTS

26. What is a Unilateral Placement? When parents remove their child from the LEA’s special education program, and enroll the child in private program. Parents who unilaterally change their child’s placement without the consent of school officials do so at their own financial risk.

27. Are Parents Entitled to Reimbursement for Unilateral Placements? Parents may be entitled to reimbursement for the costs of a private placement they have procured for their child when the following two conditions are met: 1.The LEA failed to provide a FAPE; and 2.The private placement was appropriate under IDEA and replaced the services that the LEA failed to provide. 20 U.S.C. §1412(a)(10)(C); Burlington v. Department of Education, 471 U.S. 359 (1985).

28. Remember – analysis is not whether parent’s placement is superior to that offered by the LEA. But, whether the LEA’s offered placement offered student FAPE. “Basic floor of opportunity”

29. 1. Did the LEA Offer/Provide FAPE?  Courts ask two questions to determine whether LEAs have provided or denied a child with a disability with FAPE:  Has the LEA complied with the procedures set forth in IDEA?  Is the IEP developed through IDEA’s procedures reasonably calculated to enable the child to receive educational benefits? Board of Education v. Rowley, 458 U.S. 176 (1982).

30. Snapshot Rule The Ninth Circuit has endorsed the “snapshot” rule, explaining that the actions of the school cannot “be judged exclusively in hindsight…an IEP must take into account what was, and what was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” Adams v. State of Oregon (9 th Cir. 1999) 195 F.3d 1141, 1149 (citing Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1041).

31. Placement Must be for Educational Purposes Must focus on whether placement is necessary for educational purposes, or whether the placement is a response to medical, social, or emotional problems that is necessary quite apart from the learning process. Clovis Unified School District v. Cal. Office of Admin. Hearings (9 th Cir. 1990) 903 F.2d 635.

32. Substance Abuse Treatment LEA are not responsible for the provision of substance abuse treatment to a disabled student even when the substance abuse interferes with the student’s education and is intertwined with emotional disturbance or other disabling condition. See e.g., P.K. v. Bedford Cent. School Dist. (S.D. N.Y. 2008) 2008 WL 298648, Blickle v. St. Charles Cmty. Unit Sch. Dist. No. 303 (N.D. Ill. 1993) 1993 WL 286485.

33. 2. Was the Private Placement Appropriate? Parent’s may receive reimbursement for their unilateral placement if the placement met the child’s needs and provided the child with educational benefit. Parent’s placement is proper even when private school is not approved by the State or that does not meet all requirements of IDEA. Florence County School District Four v. Carter (1993) 510 U.S. 7, 13-14

34. Parents Not Required to “Test Drive” LEA’s Program  School district officials had noticed student’s difficulties with paying attention in class and completing assignments and evaluated him for learning disabilities or other health impairments.  Student was found ineligible for special education services.  Students parents then enrolled him at a private academy that focuses on educating children with special needs, and sought reimbursement from the District.  A hearing officer found that student should have been deemed eligible for special education services.  The issue before the Supreme Court was whether, under IDEA, parents who unilaterally placed a child in a private school are entitled to tuition reimbursement from the school district, even if the child had never received any special education services previously. Forest Grove School District v. T.A. (2009) 129 S.Ct. 2484.

35. Parents Not Required to “Test Drive” LEA’s Program (cont’d.)  The Court determined that IDEA authorizes reimbursement for private special education services when a public school fails to provide a free and appropriate public education (“FAPE”) and the private school placement is appropriate, regardless of whether the child previously received special education services through the public school. Forest Grove School District v. T.A. (2009) 129 S.Ct. 2484.

36. Notice Requirement  Reimbursement for costs of a private school may be reduced or denied in any of the following circumstances:  At the most recent IEP meeting the parents attended before the student was removed from public school, the parents did not provide notice rejecting the proposed placement, stating their concerns, and expressing their intent to enroll student in a private school at public expense;  Parents did not give written notice to the LEA 10 business days before removing child from public school rejecting the proposed placement, stating their concerns, and expressing to enroll the student in a private school at public expense;  Before parents removed child from public school, LEA gave parents prior written notice of its intent to evaluate the student, but parents did not make the student available for evaluation; or  The parents acted unreasonably. 20 U.S.C. §1412(a)(10)(C)(iii); 34 C.F.R. §300.148(d); Ed. Code §56157.

37. Exceptions to Notice Requirement  Despite the notice requirement, the cost of reimbursement:  Shall not be reduced or denied for failure to provide such notice if: ▪ The school prevented the parent from providing such notice; ▪ Parents had not received notice of procedural safeguards; ▪ Compliance with notice requirement, or evaluation, would likely result in physical harm to the child; and  May, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if: ▪ Parent is illiterate or cannot write in English; or ▪ Compliance with notice requirement, or evaluation, would likely result in serious emotional harm to the child. 20 U.S.C. § 1412(a)(10)(C)(iv), 34 C.F.R. § 300.148(e)

38. The Stay-Put Rule and Unilateral Placement In K.D. v. Department of Education, State of Hawaii, the Ninth Circuit Court of Appeals held that the State of Hawaii provided a special education student with FAPE and that the parent may not unilaterally place a student in a private school and claim that the stay put rule applies. The Court also ruled that a settlement agreement to fund a residential placement does not create a stay put placement and is distinguishable from an LEA placing a student in a private school. K.D. v. Department of Education, State of Hawaii 665 F.3d 1110, 275 Ed.Law Rep. 585 (9th Cir. 2011).

39. Steps When Notified of (or Become Aware of) Unilateral Placement  Ignore it???  Hope the parents don’t ask for the school to pay for it???  Disenroll the student??  ACKNOWLEDGE IT!

40. Steps When Notified of (or Become Aware of) Unilateral Placement  Review student’s file  When was student last assessed?  Are the assessments sound?  Was student assessed in all areas of suspected disability?  Is a reassessment warranted?  Are there any procedural problems?  Has the District provided parents notice of procedural safeguards?

41. Steps When Notified of (or Become Aware of) Unilateral Placement (cont’d.)  Review student’s file  Is the IEP substantively appropriate? ▪ At the time of the IEP, what were student’s identified areas of need? ▪ Are all areas of need addressed in IEP? ▪ Are services appropriate? ▪ Is placement appropriate? ▪ Is placement in least restrictive environment?  Is student making progress? ▪ Progress on goals ▪ Grades ▪ Statewide testing results  Behavior issues? ▪ Behavioral goals? ▪ Behavior support plan / Behavior intervention plan?

42.  Respond in writing to parents.  Remind parents that the LEA wishes to be supportive and cooperative in every way to ensure that their child’s needs are met.  Offer a new assessment, if warranted Steps When Notified of (or Become Aware of) Unilateral Placement (cont’d.)

43. Steps When Notified of (or Become Aware of) Unilateral Placement Parents must permit the LEA to conduct necessary and appropriate assessments if the parent intends to seek the benefits of the IDEA. A case decided by a federal court in Michigan held that when a student has been unilaterally placed out of the state, a district is not legally obligated to travel out of state to conduct the assessment. (See, e.g., Lenhoff v. Farmingham School District, (E.D. Mich 1988) 680 F.Supp. 921.) However, that case is not binding precedent. Other California hearing office decisions have recognized that the application of this rule may depend on the facts of the particular case at hand, including: – The nature of the student's disability, – The level of risk involved in removing the student from the placement and transporting him or her back to the assessing agency, – Whether or not the student has already been found eligible for special education services, and – The potential levels of cost and difficulty in arranging for an assessment at the student's out of state placement. Student v. Pleasanton Unified School District and Alameda County Mental Health, Case No. SN 1546-98 (Order Re: Motion To Dismiss Alameda County Mental Health, January 25, 1999

44. Steps When Notified of (or Become Aware of) Unilateral Placement  Schedule an IEP meeting to review parents’ request/concerns  Convene an IEP team meeting  Review student’s program and make revisions if necessary  Clean up any procedural errors  Review new information from parents/teachers  If student has already been placed, consider inviting representatives from private placement.  Offer/Decline to pay for private placement and provide reasons (PRIOR WRITTEN NOTICE)

46. Presenter Contact Information Heather M. Edwards GIRARD & EDWARDS Tel: (916) 706-1255 Fax: (916) 706-2672 Email: edwards@girardedwards.comedwards@girardedwards.com