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Schaffer v. Weast Affects Oregon: How Will the Decision Affect YOU?
In Schaffer v. Weast, Justice Sandra Day
O&rsquoConnor explained that the Court &ldquogranted to resolve
the following question: "At an administrative hearing assessing the
appropriateness of an IEP, which party bears the burden of
persuasion?&rdquo 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&rsquoConnor described the parental
rights and safeguards that serve to counterbalance the &ldquonatural
advantage&rdquo of school districts: School districts have a
&ldquonatural advantage&rdquo 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 &ldquoparent has the right to an
independent educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the public agency.&rdquo
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 &ldquoPrior
Written Notice&rdquo (PWN). These revisions require that school
districts to provide PWN when the school district &ldquorefuses 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.&rdquo Perhaps most importantly, parents
may recover attorney&rsquos 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.
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· What are Independent Educational
Evaluations?
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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.
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· Park Academy Offers Educational and
Diagnostic Services to the Community
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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.
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Read on...
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· LDA of Oregon Saturday Seminar
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ALL ARE WELCOME
Location:
Marylhurst University, Baxter Hall, 7600 Pacific Hwy (Hwy 43),
Marylhurst, OR
Date: January
28, 2006
Time: 9:00 AM
- 4:00 PM
9:00 AM : On site Registration, Coffee
& Vendor Tables
10:00 AM : Barbara Bateman, Professor Emeritus, University of
Oregon at Eugene, will speak about "IDEA 2004: The Good, the Bad,
and the Ugly." A Q&A time will follow.
12:00 PM : Lunch (provided)
1:00 PM : Sylvia Davidson, Tutor, Author, and Head of Foundations
for Learning, will present materials used in tutoring and home
schooling. Come get new ideas and books to use for teaching LD
students!
2:00 PM : Sarah Doll, from the Oregon Environmental Council,
will speak about "Environmental Toxins and their Effect on Child
Development."
3:00 PM : LDA Annual Meeting
Registration
must be received by January 12. To request a registration form, please
send an email to ldaoregon@msn.com.
Cost: $35, includes lunch
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