POLICY LETTER: December 11, 2008 to Lehigh University Professor Perry A. Zirkel

12/11/08Perry A. ZirkelUniversity Professor of Education and LawDepartment of Education and Human ServicesCollege of EducationMountaintop Campus111 Research DriveBethlehem, PA 18015-4794Dear Mr. Zirkel:This is in response to your letter to Ms. Patricia Guard, Deputy Director of the Office of Special Education Programs (OSEP) at the U.S. Department of Education, dated September 1, 2008. The questions you pose and OSEP's responses are provided below.1. If a school district, pursuant to a mandatory or permissive state law under 300.307(a), adopted RTI [response to intervention] as its official approach as the process prior to a formal evaluation for identifying children with SLD [specific learning disability] and early during the process a parent - in disagreement with the RTI approach - obtained an IEE [independent educational evaluation] that determined the student was eligible as SLD based on severe discrepancy analysis, is the district obligated to pay for the IEE (assuming the district filed for a due process hearing)? Your commentary accompanying the 2006 regulations - specifically, 71 Fed. Reg. 46,689 (Aug. 14, 2006) - only partially covers this issue.OSEP's Response: In the hypothetical you pose, regardless of the method used in the IEE (severe discrepancy analysis or other), or whether the school district has adopted RTI, the parent is not entitled to be reimbursed for the IEE because the district has not completed an evaluation. The commentary you reference at 71 Fed. Reg. 46689 (Aug. 14, 2006) appears to directly address the scenario you describe above, in which the parent requests an IEE early in the RTI process because the parent disagrees with the RTI approach. The commentary states that If a parent disagrees with the results of a completed evaluation that includes a review of the results of a child's response to intervention process, the parent has a right to an IEE at public expense, subject to the conditions in 300.502(b)(2) through (b)(4). The parent, however, would not have the right to obtain an IEE at public expense before the public agency completes its evaluation simply because the parent disagrees with the public agency's decision to use data from a child's response to intervention as part of its evaluation to determine if the child is a child with a disability and the educational needs of the child. (Emphasis added) With respect to your parenthetical indicating that the district filed for a due process hearing, we note that when a parent requests reimbursement for an IEE prior to the completion of the district's evaluation, the school district may deny the request for reimbursement without filing for a due process hearing. See 34 CFR 300.502(b)(1). If, after the completion of the school district's evaluation, the parent requests an IEE at public expense, and the school district objects, the school district could file a due process complaint to show that its evaluation is appropriate or to demonstrate that the IEE obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2)(i). 2. Would your answer be the same if the parent obtained the discrepancy-based IEE upon receiving notice from the district that the child had responded successfully in the RTI process and, thus, had no reason to proceed to a formal evaluation for SLD eligibility?OSEP's Response: Yes. Under 34 CFR 300.502(b)(1), a parent has the right to an IEE3. In any event, would the district be in compliance with its obligation under 300.502(c)(1) to consider the results either by rejecting them outright as not meeting the district's agency criteria or by giving them negligible weight in light of the child's RTI results?OSEP's Response: In the scenario described in your third question, above, assuming that this question follows from the other two questions, the school district declined, based on the outcome of the RTI process, to evaluate the child. Accordingly, at this point, the child has not been evaluated or determined to be a child with a disability, and therefore, the school district would be under no obligation to consider the results of the IEE. As noted above, if the parent disagrees with the district's decision not to conduct an evaluation, the parent may request an evaluation and if the school district declines to conduct an evaluation, the parent may use all of the available dispute resolution options to obtain an evaluation. Pursuant to 34 CFR 300.502(c)(1), the results of an IEE must be considered by the public agency, if it meets agency criteria, in any decision made with respect to provision of FAPE to the child. Agency criteria refers to criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner.... 34 CFR 300.502(e) It is important to remember that the data from an RTI process can be considered as one component of a full and individual evaluation, consistent with 34 CFR 300.304-300.311, using a variety of assessment tools and strategies in determining whether the child is a child with a disability under 34 CFR 300.8 and the content of the child's IEP. 34 CFR 300.304(b)(1). The public agency may not use any single measure or assessment, including RTI, as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child. 34 CFR 300.304(b)(2)Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. If you have further questions, please do not hesitate to contact Dr. Deborah Morrow at 202-245-7456.Sincerely,/s/William W. KnudsenActing DirectorOffice of Special Education ProgramsPage PAGE 3 - Perry Zirkel