OAH Case Review: Recent case looks at length of time schools have to respond to a Parents request for IEE’s
On October 9, 2023, Parent asked the District (“Madera”) for an IEE, stating she disagreed with the District’s January 2022 evaluation (almost two years later). On October 30, 2023, Madera denied the independent educational evaluation request in a prior written notice. The district explained that they would file a due process to defend their assessment. However, they did not do so until February 2024, 11 weeks later. The questions is how long is too long?
Special Education Law
The procedural safeguards of the IDEA provide that under certain conditions, a parent is entitled to obtain an independent evaluation of a child at public expense. (20 U.S.C. § 1415(b)(1).) An independent evaluation is an evaluation conducted by a qualified examiner not employed by the school district. (34 C.F.R. § 300.502(a)(3)(i).) A parent has the right to request an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. (34 C.F.R. § 300.502(b)(1); Ed. Code, § 56329, subd. (b).) When a parent requests an independent evaluation at public expense, the school district must, without unnecessary delay, either initiate a due process hearing to show that its evaluation is appropriate, or provide the independent evaluation at public expense. (34 C.F.R. § 300.502(b)(4); Ed. Code, § 56329, subd. (c).)
The public agency may ask for the parent’s reason why he or she objects to the public evaluation, but may not require an explanation, and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing. (34 C.F.R. § 300.502(b)(4).)
The term unnecessary delay as used in title 34 Code of Federal Regulations, part 300.502(b)(2), is not defined in the regulations. It permits a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an independent evaluation. (Letter to Anonymous (U.S. Dept. of Education, Office of Special Education Programs (OSEP), August 13, 2010).) Some delay in the provision of an independent evaluation is reasonable if the school district and the parents are engaging in active communications, negotiations, or other attempts to resolve the matter. (See Horne v. Potomac Preparatory P.C.S. (D.D.C. 2016) 209 F.Supp.3d 146, 153- 155 (Horne).) The determination of unnecessary delay is a fact-specific inquiry. (J.P. v. Ripon Unified School District (E.D Cal., Apr. 15, 2009, No. 207CV02084MCEDAD) 2009 WL 1034993 (Ripon). The facts of each case are therefore critical. (Ibid.)
For example, in Ripon, the court determined the school district’s due process request filed more than two months after the request for an independent evaluation was timely, as the parties were communicating regarding the request for the evaluation in the interim and did not come to an impasse on the issue until less than three weeks before the school district’s filing. (Ripon, 2009 WL 1034993, at p. 7-8.) In contrast, in Pajaro Valley Unified School District. v. J.S. (N.D.Cal., Dec. 15, 2006, No. C 06-0380 PVT) 2006 WL 3734289), the school district did not file its due process complaint to defend its assessment until approximately 11 weeks after the student’s request for an independent evaluation. The school district offered no explanation as to why it delayed for 11 weeks in filing its complaint, or why that delay was necessary. The court found the school district’s unexplained and unnecessary delay in filing for a due process hearing waived its right to contest the student’s request for an independent educational evaluation at public expense, and by itself warranted entry of judgment in favor of the student. (2006 WL 3734289, at p. 3.)
Here, Parent requested an independent educational evaluation on October 9, 2023, stating she disagreed with Madera’s January 2022 evaluation. Parent also requested Madera provide the family’s non-attorney advocate with Student’s school records. Parent did not identify the assessment with which she disagreed in the October 9, 2023 request. However, Madera last evaluated Student between November 2021 and January 2022, as part of a three-year reevaluation which resulted in the January 20, 2022 multidisciplinary psychoeducational report.
On October 30, 2023, Madera denied the independent educational evaluation request in a prior written notice. The notice informed Parent Madera’s January 20, 2022 multidisciplinary psychoeducational evaluation and report were appropriate. Additionally, Madera informed Parent it would file for due process to defend its assessment if Parent’s request was not withdrawn by November 13, 2023. Madera did not file for due process on November 13, 2023.
Between November 13, 2023, and November 20, 2023, Parent’s non-attorney advocate informed Madera’s attorney that Parent would withdraw the independent educational evaluation request. During the same period, McHaney requested Parent withdraw the request in writing. Parent responded she was busy but would do so. No further communications ensued between Madera and Parent, or any family representative, after November 20, 2023. Madera did not file its due process complaint with OAH until February 2, 2024.
The only explanation Madera offered for waiting until February 2, 2024, 15 weeks and five days after Parent’s October 9, 2023 request, to file for due process, was it had a weeklong Thanksgiving break and a three-week winter break. Even accepting Madera’s school breaks as justification for the due process filing delay, this only accounted for four weeks of a 15-week delay. Madera’s situation was similar to that of the school district in Pajaro, where the school district waited 11 weeks after student’s request for an independent evaluation to file for due process, without an explanation for the delay, and the District Court determined the school district’s due process filing was untimely. (See Pajaro, supra, 2006 WL 3734289.)
Madera had no valid justification for waiting until February 2, 2024, to file its due process complaint. The last communication Madera had with Parent regarding the independent educational evaluation request was before the November 20, 2023 Thanksgiving break. Absent active good faith communications or negotiations to resolve the matter, the existence of school breaks for a fraction of the time passed was an unpersuasive explanation to justify the delay. (See Horne, supra, 209 F. Supp.3d at 155). By early December 2023, when Parent had not withdrawn the request for an independent educational evaluation, Madera should have filed its due process complaint.
Madera’s February 2, 2024 due process filing, four months after Student requested an independent educational evaluation and at least two months after it became clear Parent did not intend to withdraw the request, in the absence of further negotiations, constituted unnecessary delay. (Id.). Therefore, Student was entitled to an independent educational evaluation at public expense.
