DOE Shellshock! Delaware Educators, DO NOT LOOK AT DOE WEBSITE For Special Education Guidance!!!!

Thank you to the baffled soul who sent this to me.  Usually when I look up special education law for Delaware, I just go straight to Title 14.  I never look at the DOE website.  Silly me for assuming it would be the same as Delaware law….

An Independent Educational Evaluation is used when a parent may not agree with the school’s evaluation for a potential IEP request.  The parent has the right to ask for an independent evaluation at public expense.  Let me repeat those words again… at public expense.

The Individuals with Disabilities Education Act (IDEA) clearly spells this out. The information from Sec. 300.502 came from the Federal IDEA website found here: http://idea.ed.gov/explore/view/p/,root,regs,300,E,300%252E502,

Sec. 300.502 Independent educational evaluation.

(a) General.

(1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

(2) Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.

(3) For the purposes of this subpart–

(i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

(ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with Sec. 300.103.

(b) Parent right to evaluation at public expense.

(1) 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, subject to the conditions in paragraphs (b)(2) through (4) of this section.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either–

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to Sec. Sec. 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

(3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

(c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation–

(1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and

(2) May be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child.

(d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

(e) Agency criteria.

(1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation.

(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A) )

So this spells out very clearly what the Federal law states.  What about Delaware law? I looked in Title 14, section 926 for students with disabilities, which can be found here: http://regulations.delaware.gov/AdminCode/title14/900/926.pdf

2.0 Independent Educational Evaluation

2.1 General: The parents of a child with a disability have the right to obtain an independent educational evaluation

of the child subject to 2.4 through 2.9.

2.2 Each public agency shall provide to parents, upon request for an independent educational evaluation,

information about where an independent educational evaluation may be obtained, and the agency criteria

applicable for independent educational evaluations as set forth in 2.9.

2.3 Definitions for the purposes of this subpart:

“Independent Educational Evaluation” means an evaluation conducted by a qualified examiner who is not

employed by the public agency responsible for the education of the child in question.

“Public Expense” means that the public agency either pays for the full cost of the evaluation or ensures that

the evaluation is otherwise provided at no cost to the parent, consistent with 14 DE Admin. Code 923.3.0.

2.4 Parent right to evaluation at public expense; 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, subject to the

conditions in 2.4.1 through 2.5.

2.4.1 If a parent requests an independent educational evaluation at public expense, the public agency shall,

without unnecessary delay, either:

2.4.1.1 File a due process complaint to request a hearing to show that its evaluation is appropriate; or

2.4.1.2 Ensure that an independent educational evaluation is provided at public expense, unless the

agency demonstrates in a hearing pursuant to 14 DE Admin. Code 926.7.0 through 926.13.0 that

the evaluation obtained by the parent did not meet agency criteria.

2.4.2 If the public agency files a due process complaint notice to request a hearing and the final decision is that

the agency’s evaluation is appropriate, the parent still has the right to an independent educational

evaluation, but not at public expense.

2.5 If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason

why he or she objects to the public evaluation. However, the public agency may not require the parent to

provide an explanation and may not unreasonably delay either providing the independent educational

evaluation at public expense or filing a due process complaint to request a due process hearing to defend the

public evaluation.

2.6 A parent is entitled to only one (1) independent educational evaluation at public expense each time the public

agency conducts an evaluation with which the parent disagrees.

2.7 Parent initiated evaluations: If the parent obtains an independent educational evaluation at public expense or

shares with the public agency an evaluation obtained at private expense, the results of the evaluation shall be

considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision

of FAPE to the child; and may be presented by any party as evidence at a hearing on a due process complaint

under 14 DE Admin. Code 926 regarding that child.

2.8 Requests for evaluations by hearing officers. If a hearing panel or a single hearing officer appointed for

expedited appeals under 32.0 requests an independent educational evaluation as part of a hearing on a due

process complaint, the cost of the evaluation shall be at public expense.

2.9 Agency criteria: If an independent educational evaluation is at public expense, the criteria under which the

evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be

the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria

are consistent with the parent’s right to an independent educational evaluation.

2.10 Except for the criteria described in 2.9, a public agency may not impose conditions or timelines related to

obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A); 14 Del.C. §3110)

So the Delaware state law on this is very similar to the federal IDEA law.  Not a heck of a lot of difference.  But look at this information found on the Delaware DOE website:

Independent Educational Evaluations (IEE)

Parents and guardians have the right to request an Independent Educational Evaluation (IEE) for their student’s IEP team to review. An independent evaluation is appropriate if an IEE is likely to offer recommendations for a student that are different from his or her current IEP. Districts are not required to pay for an IEE and most-often this cost is paid for by the parent or guardian.

 
IEE requests must be made in writing to a district or charter school. Each district has their own process for honoring or denying this request. 

Did they really put this on their website?  Yes, they did.  http://www.doe.k12.de.us/Page/2337

I thought this was a joke when my friend sent it to me.  But no, this is real.  Now imagine a Delaware educator, without a lot of time in their day, looking to find quick information when a parent asked for an independent evaluation.  Instead of rifling through Title 14, which can be a chore in itself unless you know exactly what you’re looking for, they decide to check out the DOE website.  And they find this, and go by it.  They contact the student’s parent, or wait for an IEP meeting, and tell them “Hey, you can get an independent evaluation, but you have to pay for it.”  That school is now in violation of Federal IDEA law and Delaware law.  I will be going through their website (cause it doesn’t look like they do) and find out if there is more of this foolishness.  And in case they change the page tomorrow based on this find:

DOESnafu

I am beginning to understand why special education is considered to be horrible in Delaware.  If this is the guidance our Department of Education gives our schools and districts…  But yet if schools don’t adhere to their standards, they are labeled and shamed.  I have to wonder when this Department is ever going to learn.  Do they care?  I have to wonder.  As long as they continue to treat special education as something less than what it is and deny parents one of the cornerstones of state and federal law, these children will suffer.  And they do.

I urge all Delaware educators, in every single traditional school district, to NOT look at the DOE website at all for special education law.  Go to Google, and take the time to learn Title 14. Many new laws are now enacted stemming from the IEP Task Force.  As well, Google IDEA and know that like the back of your hand!

The Delaware Department of Education is the one giving training to school districts?  They want all our students to have “standards-based” IEPs when they have no clue about some of the fundamental parts of IDEA law?

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