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= Kirby v. Cabell County Board of Education, 2006 =

Background
Robert Kirby was an 18 year old male at the time of this case and lived in Cabell County, WV, where he attended the Cabell County school system. Robert since the fourth grade. Robert was diagnosed with a non-verbal learning disorder and/or Asperger's Syndrome, Attention Deficit Disorder, a speech and language disorder, Dysgraphia, and specific learning disabilities in reading, written language, and math. During his tenure in Cabell County schools his parents had filed over thirty complaints or due process hearing requests about disagreements with Robert's services and classification.

Due process Hearing in April, 2003
In August 2001, Cabell country Board of Education and the parents of Robert Kirby entered a mediation agreement. IT should be noted that both parties had long been in disagreement regarding the best programs and services for Robert. The goal of the mediation agreement was to determine an outside expert of conduct a comprehensive neuropsychological evaluation. An agreement was made that the parents would provide the school district with three physicians who could conduct the evaluation and the district would choose from the three. However, the parents didn't follow the agreement and decided to pursue and evaluation by a party not agreed upon. A list was not provided to the school district by the parents with the names of three physicians until October 2001. The district replied to the parents with the name of their selection. However, the parents never made an appointment for the evaluation.

In February 2002, Robert’s parents requested the district pay for a "behavioral evaluation" at which time the Board responded by requesting a due process hearing. At the hearing the parents were represented by an attorney who agreed on their behalf that Robert will be evaluated by a mutually agreed upon physician. By September, 2002, Robert had not been seen by the physician for the agreed upon evaluation and the parents were ordered to follow through. The parents later claimed that their representing attorney did not have the authority to agree to a settlement with the district. Robert finally attended the comprehensive evaluation on October 24 and November 13 of 2002. The parent claimed the finding of the report did not provide necessary information to develop an IEP for Robert  and therefore, requesting another independent evaluation paid for by the public.

Another due process hearing was conducted to determine if the evaluation was appropriate and results accurate. The result of this decision was that, in fact, the evaluation was appropriate and yielded accurate results and the parents did not have the right to an independent educational evaluation. However, prior to the ruling, the parents agreed to have the student evaluated by a different physician.

In April of 2003, the parents filed a complaint to challenge the hearing officer and in March 2004, moved forward with the evaluation to be performed by the other physician of their choosing. In April and May of 2004, an IEP team met to develop an IEP using evaluation analysis from the physician the Board had chosen. In May, Robert’s parents asked to have him outplaced and the Board denied their request.

In July of 2004 Robert’s parents requested another due process hearing stating that the board failed to provide Robert with the correct services and evaluation. Ultimately, the U.S. District Court of the South District of West Virginia found that the IEP created in 2004 “did not appropriately evaluate the underlying IEP” and, as such, “failed to provide Robert with the services to which he was entitled”  (Kirby v. Cabell County Board of Education, 2006)

District Court Filing and Arguments
At the heart of the disagreement between Robert Kirby’s parents and the Cabell County School Board was who would administer the neuropsychological evaluation. While Robert’s parents did agree to select three doctors, from which the board would choose one, the parents ultimately chose their own doctor to evaluate Robert while the Board chose a different doctor from the original list of three provided.

The conflict about who would conduct the evaluation led to another disagreement about the validity of the results as each party wanted to move forward using data from the doctor they had chosen.

Opinion of the Court
The parents of Robert Kirby wanted reimbursement for the Independent Education Evaluations (IEE) conducted by the doctor of their choosing, which took place on February 28, 2003, after they were not pleased with the results of the review from the doctor chosen by the Board, in November of 2002. A key argument by Robert’s parents, which they say warranted the decision for the IEE, was that the doctor selected by the Board didn’t “use the Diagnostic and Statistical Manual of Mental Disorders, 1994, 4th ed. (DSM-IV) to determine that Robert did not have Asperger’s Syndrome” (Kirby v. Cabell County Board of Education, 2006). After review of the decision from the IHO, the court determined that the parents of Robert Kirby did not provide sufficient evidence to prove that the evaluation in question was inadequate and, ultimately, this expense was not reimbursed. Robert Kirby’s parents attempted to acquire reimbursement for the second evaluation conducted by their doctor on March 9, 2004. However, they were once again denied this request when it was found that the evaluation didn’t conduct the testing needed to “fill the gap” (Kirby v. Cabell County Board of Education, 2006) of the failed IEP, which didn’t “adequately assess Robert’s educational achievement levels” (Kirby v. Cabell County Board of Education, 2006)

Another key aspect of the decision was regarding the 2004 IEP and the IHO decision. The IHO, in her brief, noted that Robert’s IEP was deficient because “standardized, objective tests were necessary to measure his specific subject area master” (Kirby v. Cabell County Board of Education, 2006). Despite noting this flaw, the IHO decided the IEP was valid. It was the opinion of the Court that if the IEP doesn’t assess present levels of achievement than “the IEP doesn’t comply with  §1414” (Kirby v. Cabell County Board of Education, 2006). They went on to note that the absence of standardized tests which measure present levels of mastery, the IEP will not be able to set goals and evaluate progress in order to make sound judgements on the services that are needed for Robert. As a result the 2004 IEP created by the school team failed to provide a Free and Appropriate Education to Robert and the IEP team was ordered to create a new IEP that took into consideration his current levels of mastery in order to create a plan that would adequately address his areas of growth.

Commentary and Analysis
The complaints filed by the parents of Robert Kirby were substantive. Procedural requirements, as described in Yell (2019) include items related to consent, parent participation, assessment tools, standardized tests, assessment process, statewide assessment, the IEP team, and reevaluation. Substantive requirements, as described in Yell (2019) include items related to Full and individualized assessment, team decision making, the link between assessment and intervention, and data collection.

From the time that the reevaluation for Robert’s IEP was initiated, all procedural requirements were met. This includes, to name only a few, parent involvement in the assessment and reevaluation process, an assessment that was robust and unbiased, and a follow-up to the the results of the evaluation findings by a team of qualified individuals who then used those findings to create Robert’s new IEP. However, a substantive violation in the creation of the IEP was the lack of standardized assessment information, which would have provided a foundation for which to construct specific measurable goals and determine Robert’s progress.