Parents Disagree: Test or Not Test

disagreement-bannerWhen parents disagree over an initial evaluation, what should the school do? (Test or not Test)

When John, Ron, and I were writing our book (Essentials of IDEA for Assessment Professionals [Wiley, 2011]), this issue came up,  but a definitive legal response was not available.   So we punted. The question is, “What should a school do if the parents of a child disagree about an evaluation?” For example, suppose two parents, divorced but sharing legal custody, disagree on the need for an evaluation. One parent (dad) notifies the school of concerns and signs consent for an initial evaluation. Mom, discovering what dad has done, notifies the school that consent is not being given. How, and to whom should the school respond – the request for an evaluation – or the denial of consent?  The situation today remains basically unchanged.

This discussion focuses primarily on consent for evaluation, and only tangentially on consent for services, which is also complicated, but in different ways.   Although the focus is on divorced parents with shared custody or shared educational decision-making rights, similar conflicts can arise between parents who are married and living together and perhaps agreeing about everything except special education

Federal Regulations:  Both the 2006 Final Regulations and the 2008 Amendment are silent with respect to whose opinion the school must respect . . . the consenting or dissenting parent . . . when it comes to evaluations.   The federal regulations allow a school to suggest mediation or to take a dissenting parent to due process if it wants to overrule the objection, but it is not required to do so.   At least one state, Minnesota, has regulations prohibiting schools from doing even that.  Courts both in Minnesota and New York ruled in 2009 that the only recourse for a dissenting parent would be to seek court relief.  The reasoning in Minnesota was based on a state law prohibiting public agencies from trying to override a parent’s rejection of the school’s request to conduct an initial evaluation. The New York decision regarding the parent’s exemption from exhaustion of remedies was apparently based on the failure of the school’s attorney to provide legal citations supporting that necessity . . . which as we see below are clearly enumerated under Sections 300.503 and 300.507.

Complicating matters, even though the 2008 Amendment to the IDEA  did not explicitly address a parent’s right to re-refer a child when the other parent rejected services, a Letter to Cox from OSEP in 2009 clarified that after one parent revoked consent for services, either parent, including a parent other than the parent who revoked consent, maintained the right to subsequently request an initial evaluation under 300.301.
Letter to Cox 2009

While our regulatory agencies appear to regard parents as monolithic, with only one opinion between them regarding evaluations, the 2008 Amendments regarding parents at odds over whether their child should or should not receive any sped services were crystal clear.   In that scenario, when parents are in disagreement over services, the dissenting parent’s views must be respected, and if the other parent wants to challenge that refusal, s/he must take the other parent to court.   Administrative resolution procedures are not available when parents disagree over a child’s need for special educational services.

The two court cases, one from Minnesota, and the other from New York, referenced above are summarized with links below.

A Minnesota court has held that if parents are divorced and have a  joint custody agreement then if one parent refuses consent, the school may NOT proceed with the evaluation even if the other parent has agreed to the assessment.  That court opined that the parents could resolve their disagreement by going back to court.

In Minnesota, there was a state law prohibiting school systems from overriding parental decisions on initial evaluations, so it appears that neither party had administrative remedies available.  J. H. v. Northfield, May 5, 2009, State of Minnesota Court of Appeals.   Although it appears on the face of it that Minnesota’s application of federal regulations gives parents more rights than required by Congress, in actuality, and just as a footnote, the judge said that even though the school could not invoke due process, it still could in such a circumstance refer a parent to protective services based on their suspicion of neglect (based apparently at least in part on the presumption that refusing consent constituted neglect on the part of the parents.)
J.H. v. Northfield, Minnesota Court of Appeals, 2009

In New York the same year (Zeichner v. Mamaroneck Union Free Public Schools, June 24, 2009) a similar decision was reached on behalf of the dissenting parent, although the grounds were  different.   In NY, the schools were arguing that the parents had not exhausted administrative remedies before going to court.   However, the court said a close reading of what the school attorney had provided only revealed that the school has the right to take a dissenting parent to due process, not the opposing parent, and the opposing parent was not even a party to the school’s action so her rights weren’t a consideration of the court’s.   Whether the mother was or was not a party does not appear relevant, however, as subsequent sections of the IDEA (Sections 503 and 507) are quite specific in saying that either parent may use administrative means (an impartial hearing) to challenge a school system’s decision to evaluate or refuse to evaluate their child.  The school system also could have asked the dissenting parent to come in for a mediation meeting, but the school administration didn’t think that they could because the matter was before a court and five months earlier the judge had issued an injunction prohibiting them from testing the child.   Putting it kindly, the judge found their reasoning exceedingly flawed.   It was equally clear that she thought the dissenting parent in his instance probably had a pretty good case.   However, that was not the question before her court, and not the question she actually answered.   What she actually wrote was:

There is nothing in the record before this Court that establishes any special or compelling circumstance which requires that petitioner’s wishes with respect to his child not being evaluated be disregarded, see Matter of Deeds, 156 Misc.2d 805, 594 N.Y.S.2d 948 (N.Y. Co. Surr. Ct.1992), which conclusion necessarily is buttressed by the inescapable fact that it had not been Zachary’s teacher or the District which had initiated the evaluation.   It is not for this Court, in the context of this motion, to adjudicate the issue of the appropriateness of petitioner’s position, but the Court parenthetically notes that petitioner has made some compelling arguments against having his son tested.

With respect to the school’s claim that the parent had failed to exhaust administrative remedies that judge wrote,

While respondent argues that this proceeding must be dismissed because petitioner has failed to pursue his administrative remedies, a careful reading of respondent’s submissions makes clear that respondent has failed to specifically identify what is the administrative review process under IDEA that petitioner had been required to pursue to prevent his son’s testing.   Indeed, respondent states, without referencing any statutory authority, that “administrative procedures are available to review petitioner’s challenge of the CSE’s intent to evaluate Zachary for the possible presence of an educational disability,” (Memorandum of Law, p. 7), but then it references only statutes and Regulations which afford certain procedural safeguards during the evaluation process.

It wasn’t clear what regulations the school system had cited; but the relevant regulations would or should have been Section 300.503, which lists those actions for which prior written notice is required, and Section 300.507 which explicitly says that a parent or public agency may ask for a hearing relating to the evaluation of a child.
Zeichner v Mamaroneck, NY Supreme Court, 2009

When Prior Notice is Required:
300.503 Prior Notice by the Public Agency

What must be included:  300.507 Filing a Due Process Complaint

Neither of the cases above was one that this writer would have normally reported under Guy’s Log as a Litigation Update because of both courts limited jurisdiction and also because of the rather unique set of circumstances in each situation. Additionally, the Minnesota decision was unpublished, meaning it could not be used as precedent even in Minnesota except under very limited circumstances. In other words, neither of the cases above should be relied upon for guidance.   The main reason for citing and discussing them here is that they have been cited and discussed elsewhere on the Internet.   (For additional discussion of unpublished decisions, see: )   Lest there be any doubt that the issue is far from settled, in the Minnesota case, the judge also wrote, without citation,

The school district also cites to decisions from other states that allow a school district to proceed with an initial evaluation when one parent consents and another parent refuses.

The Minnesota judge dismissed those decisions, without analysis or citation, as non binding.   We are not in a similar position to assess their applicability.

In the absence of applicable federal regulations, or a precedential federal circuit or supreme court decision, the actual answer to the question, “Which parent gets precedence in a dispute over a testing consent?” may therefore be state specific.

That conclusion is supported by this quotation from a Maine due process hearing decision:

The Maine Special Education Regulations speak directly to the issue of what happens when one parent with joint custody gives consent, while the parent with joint custody refuses to consent. MSER section12.11(C) states, in part:

Generally, either parent may grant consent. In the case of divorced parents with joint custody either parent may grant consent. However, in the event that one parent grants consent and the other parent refuses, then the school is obligated to initiate the action for which consent has been granted.

The Administrative Law Judge (ALJ) went on to say

The meaning of the regulation as applied to this case is clear: because the student’s mother, a divorced parent with joint custody, has given her consent, the school is not only allowed to proceed with the evaluation, identification and initial placement of the student, it is obligated to do so. Maine Due Process Hearing Decision

While the NY judge in the case above had found there were no administrative remedies for parents to resolve intra family disputes, more than one ALJ in other states has concluded otherwise.

It was a Pennsylvania lawyer’s opinion that the schools should do what they thought appropriate to provide an eligible student with a free appropriate public education. That same attorney also opined that if a parent disagrees in writing with a district decision to test over his or her objection (based on a written consent from the other parent), he or she does have the option of requesting a due process impartial hearing to determine if the evaluation should be completed or (if already completed) whether it was proper to do so. The link to full text of the McNees, Wallace, and Nurick newsletter: McNees Education Newsletter

There was also a decision out of California by an ALJ, which is not being cited here, who interpreted a court Marital Agreement as requiring the school to get both parents’ signatures on a consent before proceeding with an evaluation. Significant for the warring parties because the prevailing party would be entitled to attorney fees. Mentioned here to illustrate that every case involves a roll of the dice and no case is a slam dunk.

Our unofficial guidance:

In the absence of written guidance from your state, when parents disagree in writing over the provision of an initial evaluation to a student, the IEP team should conduct the initial review required by Section 300.305, just as it would if there were no disagreement.  For the minimum list of considered factors to be documented, click on:  300.305 Additional Requirements for Evaluations and Reevaluations

If the opposing parent has not expressed his or her wishes in writing, in our opinion s/he should be advised of the right to do so if they want the IEP team to consider their opinion. Alternatively, the opposing parent could attend the IEP team meeting and either s/he could record her opposition OR the school could do so for the record.

Since that review, including any screenings conducted under Section 300.302, would not constitute an evaluation, consent would not be required from either party.   Then on the basis of those findings the team should decide whether additional testing was needed to determine if the child needed special education or related services. The decision to test when transmitted to both parents should be accompanied by your state’s parent handbook of rights, including the right to an  impartial hearing to determine whether the evaluation should be conducted or, if already completed, whether it was proper for the school to have done so.   (The remedy if it was not  proper would be to expunge the record.)     Compliance with the procedural requirements is no guarantee of success in an adversarial proceeding, but (in this writer’s opinion) being in a position to defend the district’s choice based on its own assessment of the situation should improve your school system’s chances.
300.302 Screening for instructional purposes is not evaluation

Advice in a nutshell:   When you have a parent’s written consent to test, do everything just the same as you would if there was no disagreement, give both parents their due process rights, and hope for the best.  And if you have a real conflict, we would strongly advise that your school system also get a real lawyer.

 Guy M. McBride, Ph.D.