Daily Archives: June 30, 2017

Untimely Evaluation Leads to Independent Educational Evaluation at School's Expense and Attorney's Fees

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

The Office of Administrative Hearings (“OAH”) ruled that a student was entitled to an independent educational evaluation at her school district’s expense because the district took too long to conduct its evaluation and translate the results for student and her parent.  (Riverside Unified School District, 117 LRP 21567.)  This partial success also entitled the student to an award of attorney’s fees.

Background:

Student was a preschooler who had recently transitioned from her local regional center to District’s preschool program.  District created an assessment plan and obtained Parent’s consent on December 5, 2015.  The plan called for psychoeducational and speech language assessments.  The psychoeducational assessment was completed promptly, and District attempted to hold an IEP meeting on January 11, 2016 to review the results with Parent.  However, Parent asked for a delay until the speech language assessment was completed.  The speech language assessor completed testing in late February 2016, but then continued to conduct extra assessments in March because no IEP meeting had been scheduled.  In mid-March, Parent asked for the speech language report to be translated into Spanish.  The report was translated in April and an IEP meeting finally occurred on June 3, 2016.

Student requested an independent educational evaluation (“IEE”) at District’s expense, but District refused and filed a request for due process hearing to settle the matter.

District argued that it was not required to pay for an IEE because District’s psychoeducational and speech language assessments were appropriately administered by qualified assessors and met all statutory requirements.  Student argued that she was entitled to an IEE at District’s expense because she had not been assessed in all areas of suspected disability, the assessors failed to follow test protocols and observe Student outside of the testing environment, and the assessments were not timely.

While the Assessments Were Competently Administered, the Process Took Too Long

OAH concluded that District’s assessors were well qualified, the assessments were appropriately administered, and Student had not properly raised the issue of failure to assess in all areas of suspected disability.  However, OAH partially agreed with Student, finding that the speech language assessment had not been timely.  From parent’s consent to the assessments to the IEP team meeting to discuss the results, no more than 60 days should have elapsed.  Instead, over 150 days passed.  OAH ordered District to pay for a speech language IEE and declared Student a partially prevailing party, entitling Student to an award of attorney’s fees.

Strict Timelines Apply to Assessments, or an Independent Educational Evaluation May Be Ordered (Along With Attorney’s Fees)

Local educational agencies (“LEA’s”) must follow strict timelines to assess students for suspected disabilities.  If an LEA decides to assess a student, it must present a written assessment plan to a parent or guardian within 15 calendar days of the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension.  (Ed. Code §§ 56043(a), 56321(a).)  However, calendar days between the pupil’s regular school sessions or terms (like semester breaks) or calendar days of school vacation in excess of five schooldays (like winter or spring break) are not counted when calculating this deadline.  (Ed. Code §§ 56043(a), 56321(a).)  The assessment plan must explain, in language easily understood by a lay person, the types of assessments to be conducted.  (Ed. Code, § 56321 (b).)  The parent then has at least 15 days to consent in writing to the proposed assessment. (Ed. Code, §§ 56043(b), 56321 (c)(4).)

Once a parent consents to the assessment, a determination of eligibility and an IEP team meeting must occur within 60 days of receiving parental consent.  (See 20 U.S.C. § 1414(a)(1)(C); Ed. Code, § 56302.1(a).)  An assessor must produce a written report of each assessment that includes whether the student may need special education and related services and the basis for making that determination, and the report should be addressed at the IEP meeting. (Ed. Code, §§ 56327 (a), (b).)

A student may disagree with an LEA’s assessment and request one independent educational evaluation (“IEE”).  (34 C.F.R. §§ 300.502(b)(1), (b)(2); Ed. Code § 56329(b).)  An IEE is an assessment conducted by a qualified third-party examiner who is not employed by the LEA.  (34 C.F.R. § 300.502(a)(3)(i).)  If a student requests an IEE, the LEA must, without unnecessary delay, either provide an IEE at public expense or file a request for due process hearing to show that the LEAs assessment is appropriate.  (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329(c).)

This case shows that it is not enough for an LEA’s assessment to be substantively appropriate.  The LEA must also comply with related procedural requirements like the strict timelines found in the Education Code.  Here, had the speech language assessment been timely, OAH would have denied all of Student’s claims.  Instead, the Student partially prevailed, requiring District to pay for Student’s IEE and entitling Student to a partial award of attorney’s fees – a costly result that probably could have been avoided if District had stayed on top of scheduling assessments and IEP meetings.