This past year, the Office of Special Education Programs (OSEP) of the United States Department of Education issued a number of guidance letters that may be of use to Impartial Hearing Officers. Although OSEP always cautions that its responses to inquiries are informal guidance and not legally binding, the letters are a helpful resource for resolving knotty issues about the application of the Individuals with Disabilities Education Act and the regulations, and courts are known to rely on them when reviewing hearing officer decisions. Here are four letters that merit attention:

(1) Fletcher, 72 IDELR 275 (OSEP Aug. 23, 2018). This letter concerns due process hearings in disciplinary disputes, in which an expedited hearing is provided by law. The problem is that sometimes the complaint for an expedited hearing is filed when there are less than 20 school days (the outside time by which the expedited hearing has to be held) left in the school year, or it is filed during the summer or some other time school is not in session. The office declared that when “the due process complaint requesting an expedited due process hearing is filed with less than 20 school days remaining in the school year or if the request is filed during the summer or other times when school is not in session . . . , the SEA or LEA must ensure that the hearing is completed no later than the 20th school day from when the expedited due process complaint is filed and that the hearing officer’s determination is made no later than the 10th school day after the hearing concludes – even if the complaint was filed during the previous school year or during the summer, and the due date falls during the following school year.” Thus, the expedited hearing may wind up being carried over to the following school year or other time school resumes, as long as the 20-school day and 10-school day timelines are met.

(2) Anonymous, 72 IDELR 251 (OSEP Aug. 23, 2018). A recurring issue in the evaluation of children with disabilities is the ability of evaluators who are independent of the school district to come into the public school to observe the child and the child’s interactions with the school environment. OSEP’s approach to issues of this type is to hold districts to the same standards for outside evaluators as they impose on their own employees or contractors who conduct evaluations. In this letter, the office stated that, “[I]t would be inconsistent with the right of a parent to have an IEE considered by the public agency for a public agency to limit an independent evaluator’s access in a way that would deny the independent evaluator the ability to conduct an evaluation in a way that meets agency criteria. Such criteria would include the amount of time that the independent evaluator spends with the child.” This interpretation allows extensive access for in-school observations for an independent evaluator, as long as internal evaluators have that level of access.

(3) Anonymous, 72 IDELR 222 (OSEP Aug. 2, 2018).  Cases involving transfers of students who have IEPs from their previous districts, often districts in other states, seem to represent a disproportionate number of special education hearing disputes. OSEP attempted to resolve an issue about the receiving district’s evaluation responsibilities in this letter. The letter states: “[Y]ou ask whether the new local educational agency (LEA) must evaluate a child who transfers from another State if the child already meets the new State’s eligibility criteria. You also ask, when reviewing existing evaluation data available for the child, if a formal review of that data (by a school psychologist) is required or if an individualized education program (IEP) Team discussion/decision that is then documented on the prior written notice would be sufficient.”  The answer OSEP provided is that a full-fledged evaluation may not be required by the law. The letter continues: “[I]f the new public agency does not need additional information to determine the child’s eligibility and the content of the child’s IEP, it may not need to conduct an evaluation. This is a fact-based decision that must be made on a case-by-case basis.” The new district will, of course, need to review the existing information about the child’s needs and how to address them: “Regarding your question concerning the review of existing evaluation data on the child under 34 CFR § 300.305, the IEP Team and other qualified professionals, as appropriate, must review the existing evaluation data on the child as part of an initial evaluation (if appropriate) and as part of any reevaluation.” But the review of the existing data does not need to be in an IEP meeting and the school psychologist does not necessarily dominate the operation: “This review can occur without conducting a meeting (and parental consent is not required for the review of existing evaluation data on the child. . . .While a school psychologist may participate in this review either as a member of the child’s IEP Team or as another qualified professional, a school psychologist is not solely responsible for conducting the review of existing evaluation data under 34 CFR § 300.305 because this is a determination to be made by the child’s IEP Team, which includes the child’s parents, and other qualified professionals, as appropriate.”

(4) Mason, 72 IDELR 192 (OSEP July 27, 2018). Behavior control measures that are effectively disciplinary in character but are not traditional out-of-school suspensions or expulsions are common, but do not appear to have been given as much thought as they might have by the drafters of IDEA or the IDEA regulations. In this letter, OSEP addressed the situation in which a child’s school days are recurrently abbreviated by the school administration, outside of the IEP process. OSEP determined that repeated action of this type could amount to a disciplinary removal triggering the due process and other protections in IDEA. The office wrote: “In your letter, you provide a description of one of your client’s cases in which a child experienced an administratively shortened school day to address problem behavior at the child’s school. You stated that the shortened school days did not occur as a result of the individualized education program (IEP) Team process. . . . You stated that you are concerned that students with disabilities in this school are not being provided with the disciplinary protections required under the Individuals with Disabilities Education Act (IDEA). . . .  The use of short-term disciplinary measures under the circumstances you described, if implemented repeatedly (emphasis added [by OSEP]), could constitute a disciplinary removal from the current placement, and thus the discipline procedures set out in 34 CFR §§ 300.530-300.536 would apply.”