The answer to that question is “Yes!” Schools and parents both have rights under the IDEA when it comes to evaluations. While parents have the right to information about the types of assessments a local educational agency plans to conduct, they may not dictate the terms or set conditions for an evaluation for special education purposes. For example, parents may attempt to include additional conditions with their written consent. Some examples are: (1) the parents must be present during the testing, (2) the evaluator must meet with the parents before or after the evaluation, (3) the parents must approve each of the testing instruments to be used, (4) the evaluator must discuss the evaluation results with the parents before sharing the results with the IEP team, (5) the evaluation cannot be used in litigation with the parents, and (6) the parents would determine who would conduct the evaluation. Generally, such conditions are considered an effective denial of consent. As a result, the school is not required to proceed with the evaluation subject to those conditions. The legal authority upholds the school’s right to select the individuals to conduct the evaluations, and defers to the professional judgment of the evaluators for how the evaluation process should work to obtain the best information regarding a child’s abilities and needs.
LEAs Are Not Required to Continue Developing IEPs for Children No Longer Attending Its Schools Due to Private Placement Unless a Prior Year’s IEP Is Under Administrative or Judicial Review.
HELD: In Student v. High Tech High and Desert Mountain SELPA (OAH No. 2012020034), the hearing officer determined that the local educational agency did not violate IDEA, or otherwise deny a student who had been placed by her parents in a private school a free appropriate public education, for failure to have an IEP in place at the beginning of the 2011-12 school year or convene an annual IEP meeting during the 2011-12 school year.
FACTS: The parents dissented to the student’s October 14, 2010 IEP, and privately placed the student at a private school in February 2011, for the remainder of the 2010-2011 school year. The parents continued to privately place the student for the entirety of the 2011-2012 school year. Then, the parents filed a due process complaint on February 2, 2012.
RATIONALE: The hearing officer explained that “[a] school district is only required to continue developing an IEP for a disabled child no longer attending its schools when a prior year’s IEP for the child is under administrative or judicial review.” (M.M. v. School Dist. of Greenville, (4th Cir. 2002) 303 F.3d 523, 536.) It is the pendency of review that creates the need to maintain and update the IEP. (Amann v. Stow School System, (1st Cir. 1992) 982 F.2d 644, 651, fn. 4.) Therefore, the LEA was not required to have an IEP in place at the beginning of the 2011-2012 school year, because this predated the student’s request for administrative review of this matter. Similarly, the LEA was not required to continue developing the Student’s IEP, including convening an annual IEP meeting in October 2011, because this date also predated the February 2012 request for administrative review.