Spring Branch ISD v. Student, Dkt. No. 229-SE-0415 (Hearing Officer Mary Carolyn Carmichael, May 26, 2015).
Facts: The District filed this request for a due process hearing for a ruling overriding the parent’s lack of consent for special education testing. The record showed that the student attended school in the general education setting, but had a history of serious and persistent behavior problems. It was observed that the student’s behavior interrupted most of the student’s time in the classroom. The student’s teacher had concerns over the student’s noncompliance, inability to stay in a designated area, and that the noncompliant behaviors interfered with the student’s learning and that of other students. A referral was made for a full and individual initial evaluation (FIE). The parent, however, refused to consent to the FIE. Meanwhile, the student’s general education teachers attempted numerous general education accommodations, with no success. When the student’s behavior continued to escalate, the District requested a due process hearing to override the lack of parent consent.
Holding: The hearing officer found in favor of the District and held that it was entitled to conduct an initial evaluation of the student, regardless of the parent’s lack of consent. According to the hearing officer, the student’s multiple disciplinary referrals for assaultive behavior against other students gave the District reason to believe that the student may meet eligibility criteria for special education services under the emotional disturbance category. At the time of the hearing, the student’s assaultive and aggressive behaviors continued to disrupt the student’s and peer’s educational experience “with alarming intensity and frequency.” The student’s teachers demonstrated that they had exhausted all available general education interventions and strategies without success. While the parent claimed that the student was going to be evaluated privately, no private evaluation report was provided to the District. The hearing officer held that the District met its child-find duty to seek consent for an initial evaluation of the student and proved that an FIE, including a psychological evaluation and speech/language evaluation, was necessary to determine whether the student qualified for special education and related services.