California OAH special education order · May 11, 2021
Order Granting Motion to Compel Observation
OAH Case No. 2021030073 · ALJ June Lehrman
OAH ordered Roseville to let Student's independent evaluator observe Student's placement because counsel's sworn declaration that an IEE was underway was enough to trigger Education Code section 56329.
Summary
Student asked OAH to order Roseville to let Dr. Paula Solomon observe Student's placement at Challenge High School as part of an independent educational evaluation (IEE). Roseville opposed. It argued that without proof such as a signed contract, there was no showing an IEE was actually underway, and that observations just for discovery are not allowed. OAH found that Student's counsel's declaration under penalty of perjury, confirming the observation was part of an IEE, was enough proof. OAH ordered a one hour and 20 minute observation on a date the parties agree on.
Why it matters
Under Education Code section 56329(c), an independent evaluator gets the same chance to observe the student in class that the district's assessor had. A sworn declaration from counsel that an IEE is underway can be enough to establish that right, without a signed evaluator contract.
Key authority cited
- Ed. Code, § 56329, subd. (c)
People named in the order
- Paula Solomon, PhD, Independent evaluator retained for Student
- June Lehrman, Administrative Law Judge
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
PARENTS ON BEHALF OF STUDENT,
v.
ROSEVILLE JOINT UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2021030073
ORDER GRANTING MOTION TO COMPEL OBSERVATION
MAY 11, 2021
On May 6, 2021 Student filed a motion to compel Roseville to permit Paula Solomon, PhD, to observe Student’s educational placement at Challenge High School.
At the May 10, 2021 prehearing conference, the motion was argued, and the undersigned Administrative Law Judge permitted Roseville to submit written opposition to the motion by May 11, 2021.
Student argues that the observation is part of an independent educational evaluation, or IEE, and is therefore authorized by Education Code section 56329, which states: “If a public education agency observed the pupil in conducting its assessment, or if its assessment procedures make it permissible to have in-class observation of a pupil, an equivalent opportunity shall apply to an independent educational assessment of the pupil in the pupil’s current educational placement and setting, and observation of an educational placement and setting, if any, proposed by the public education agency, regardless of whether the independent educational assessment is initiated before or after the filing of a due process hearing proceeding.” (Ed. Code, § 56329, subd. (c).)
Roseville argues that in the absence of proof, such as a signed contract for services, it cannot be established that an IEE is actually underway. Roseville further argues that an observation merely for purposes of discovery is not permitted, therefore Student must establish that the IEE is actually occurring for Education Code section 56329 to apply.
Student’s counsel submitted a declaration with his motion, stating that he had “confirmed” to Roseville’s counsel “that Dr. Solomon’s efforts to conduct observations of are part of an independent educational evaluation.” This representation by counsel, under penalty of perjury, that the IEE is underway, suffices to establish Student’s entitlement to the observation.
Therefore, Dr. Solomon shall be permitted to observe Student’s placement at Challenge High School for the requested one hour and 20 minutes, on a date and time to be determined between the parties. If the parties are unable to agree upon a date and time for the observation, further motion practice may be necessary to resolve that dispute.
IT IS SO ORDERED.
June Lehrman Administrative Law Judge Office of Administrative Hearings