Schaffer v. Weast Affects Oregon: How Will the Decision Affect YOU?

In Schaffer v. Weast, Justice Sandra Day O’Connor explained that the Court “granted to resolve the following question: "At an administrative hearing assessing the appropriateness of an IEP, which party bears the burden of persuasion?” Parent's Rights and Protections as "Firepower to Match the Opposition" In Schaffer, the Court reviewed and clarified the rights and protections afforded to parents so that the "parents [have] access to an expert who can evaluate all the materials that the school must make available" so they have "the firepower to match the opposition": Congress obliged schools to safeguard the procedural rights of parents and to share information with them parents have the right to review all records that the school possesses in relation to their child. §1415(b)(1). They also have the right to an "independent educational evaluation of the[ir] child." Ibid. The regulations clarify this entitlement by providing that a 'parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.' 34 CFR §300.502(b)(1) (2005).

Justice O'Connor wrote: If parents believe their child's IEP is inappropriate, they may request an "impartial due process hearing." The Act is silent, however, as to which party bears the burden of persuasion at such a hearing. We hold that the burden lies, as it typically does, on the party seeking relief. Finally, respondents and several States urge us to decide that States may, if they wish, override the default rule and put the burden always on the school district. Several States have laws or regulations purporting to do so, at least under some circumstances (AK, AL, CT, DC, DE, GA, IL, KY, MN, WV) Because no such law or regulation exists in In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed.

Justice O’Connor described the parental rights and safeguards that serve to counterbalance the “natural advantage” of school districts: School districts have a “natural advantage” in information and expertise, but Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.

Prior Written Notice The decision in Schaffer v. Weast focused on revisions in IDEA 2004 and “Prior Written Notice” (PWN). These revisions require that school districts to provide PWN when the school district “refuses to initiate or change, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.” Perhaps most importantly, parents may recover attorney’s fees if they prevail. These protections ensure that the school bears no unique informational advantage.

What Does the Decision Mean to You? It depends. The implications of this decision will vary around the country. In many jurisdictions, states are already operating under the rule that the moving party has the burden of proof. In these states, the decision should have no significant impact. The decision will change the usual due process special education procedures in about half of the states. If the state did not have a preexisting state rule or regulation that assigned the burden of proof to the school district (e.g., OREGON), the burden will be on the moving party. Some states, by state statute or state regulation, already assign the burden to the school district. These states include Alabama, Alaska, Connecticut, Washington, D.C., Delaware, Georgia, Illinois, Indiana, Kentucky, Minnesota, and West Virginia. These states are not covered by this ruling. Circuits that place the burden of proof on the school district, or have not addressed this issue, will be affected by the decision in Schaffer v. Weast. States under the jurisdiction of these circuits that do not have a state statute or regulation that assigns the burden of proof to the school district include: Arizona, Arkansas, California, Florida, Hawaii, Idaho, Illinois, Iowa, Maine, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Vermont, Washington, and Wisconsin,

The decision in Schaffer changed the Due Process Procedure. If parents do not consent to the changed IEP, it is clear that the school district must seek a special education due process hearing. When the school district seeks to change an IEP and parents do not consent, the school district may not unilaterally change the IEP. The school district must now request a due process hearing, present their evidence first, and prove that their proposed IEP provides the child with a free appropriate education.

Old Tactics May Backfire In an attempt to delay or sabotage the process, some districts refuse to release records. Some districts advise parents that they must use an evaluator from the school's "approved list of evaluators." In some jurisdictions, principals refuse to permit the parent's evaluator or expert to observe the child's public school program. In light of the decision in Schaffer, these tactics can be expected to backfire. If litigation does ensue, these tactics may be a sufficient procedural breach to justify a ruling in favor of the parent and child.

Parents and school personnel are often confused about what constitutes an independent educational evaluation (IEE) and how the evaluation is to be used. This article addresses what constitutes an IEE, the value of an IEE, what the law requires of school districts, and who is financially responsible for an IEE.

What is an IEE? Federal law defines an IEE broadly as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. 300.503. Thus, an IEE is not limited to evaluating only a child's academic or cognitive skills, but may include the evaluation of any skill related to the child's educational needs. Evaluations of neurological functioning, adapted physical education, sensory needs, even music therapy, are but a few examples of the types of IEEs covered under the IDEA. Parents may obtain an IEE, for virtually any purpose if it impacts the child's education.

What is the Value of an IEE? One goal of Congress in passing the 1997 Amendments to the IDEA was to strengthen the role of parents in the educational decision-making process. An IEE provides parents added authority at the IEP meeting. One court held: "[T]he failure to receive and consider parental information, including evaluations they may obtain, directly denies parents the pivotal role they should enjoy in the development of their child's placement. This role includes not only providing evaluations or other information, but discussing such information. Consideration of such outside information also ensures that a program is individualized and provides a check on the judgments being made by school officials regarding the child." Community Consolidated Sch. Dist. No. 180, 27 IDELR 1004, 1005-06. Federal regulations require that parents and school personnel act as equal participants in the development of a child's IEP and that the parents' participation in the IEP process must be meaningful. In many cases, independent evaluations provide support for the parents' opinions and requests. When a school district refuses to consider an independent evaluation, it not only denies equal and meaningful input from the parents, but it also prevents important information from the evaluation from being considered by the IEP team that develops the IEP. Parents are not the only ones to find IEEs valuable. Sometimes, school districts request IEEs when they lack the personnel or expertise to conduct a particular type of evaluation. In other instances, a school district may seek an IEE to assuage parental concerns about the fairness or accuracy of an evaluation.

What is Required of School Districts? The federal regulations direct school districts to inform parents of their right to obtain an IEE, 34 C.F.R. §300.502(a), where they may obtain an IEE, id., and conditions for obtaining an IEE at public expense. 34 C.F.R §300.502(b). Several sections of the federal regulations direct local school systems to ensure that such information provided by parents is properly considered. See 34 C.F.R. §§300.343(c)(2)(iii), 300.503(c), 300.533(a)(1) (i). The federal regulations even envision instances where the independent evaluation may be given greater weight than the school system's evaluation. 34 C.F.R. §300.502(b). Consideration of parentally obtained evaluations by the IEP team is not discretionary, it is mandatory. 34 C.F.R. 300.503(c) ("If the parent obtains an independent educational evaluation at private expense, the results of the evaluation (1) Must be considered by the public agency in any decision made with respect to the provision of a [free appropriate public education] to the child."). (Emphasis added). When a parent presents an independent evaluation to the school district, the IEP team is required to consider the evaluation. This does not mean that the school district must accept the findings or recommendations in the IEE. It does means that the IEP team must review the IEE, and discuss it as appropriate. In this regard, the requirements placed on school districts are fairly minimal. However, a United States District Court in Maryland ruled that an IEP team's failure to consider the private evaluations submitted by the parents was such a serious violation of the IDEA that this alone constituted a denial of a free appropriate public education. DiBuo v. Bd. Of Educ. of Worcester County, slip no. S-01-1311 (Nov. 14, 2001).

Who is Financially Responsible for an IEE? Generally, parents are responsible for the costs of an IEE. However, in some circumstances the school district may be financially responsible. If the school district does not have the personnel or resources to conduct an evaluation that an IEP team has identified is needed, the school district must obtain a private evaluation at its own expense. Or, if the school district determines that an IEE is needed or should be conducted for any reason, in most situations, the school district has to pay for the evaluation.

When Parents & School Staff Disagree When parents and the school district disagree about the need for an independent educational evaluation (IEE), there are certain conditions in which a school district may be forced to pay for the evaluation. If the parents present an evaluation that the school district previously refused to conduct, the school district may be required to reimburse the parents for the costs of this evaluation - if it is determined that the evaluation provided information which impacted the child's education, services or placement. Additionally, if the parents disagree with a school district evaluation and request an IEE at public expense, the school district must obtain the IEE and pay for it unless the school district requests a due process hearing and the hearing officer rules that the IEE is not needed. 34 C.F.R. 300.503. In other words, the school district cannot simply refuse the parents' request for an independent evaluation. The district must consent to the IEE at public expense, or request a due process hearing and prove to a hearing officer that the school evaluation was sufficient. Finally, if a hearing officer orders an IEE during the course of a due process hearing, it will be conducted at public expense.

Conclusion Independent educational evaluations can be a valuable tool for parents and school staff when used to determine a child's educational needs. The burden placed on school systems to consider a parentally obtained IEE is not severe. But, failure to give due consideration to a parentally obtained IEE can result in an invalid IEP. One way that parents can act as equal participants in educational decision-making for their child is to obtain additional information from an IEE. School districts that welcome a parentally obtained IEE, rather than viewing it with suspicion or hostility, will benefit from the additional information the IEE provides. When parents and school personnel work together, this is always in the child's best interest.

About the Author Wayne Steedman is a partner in the law firm of Callegary & Steedman, P.A. in Maryland. His practice is devoted primarily to the representation of children with disabilities.

Park Academy, located on the campus of Marylhurst University, is a private school for students with learning disabilities in grades 1-12.

Beginning in February 2006, the school will open their diagnosic testing clinic to the community, offering complete psycho-educational evaluations for the diagnosis of learning disabilities among children and adolescents.

For more information regarding the diagnostic testing clinic at Park Academy, contact Dr. Kristina Breaux, Educational Research and Clinical Director, at 503-697-6213 or kristina@parkacademy.com.