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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: We have requested an Independent Educational Evaluation (IEE) at public expense stating that "we disagree with and found inadequate" the school districts evaluation.  The Director wants us to tell him why and which evaluation (we had two) that we found to be inadequate and which we disagree with and why.  How should I respond?

   

Answer:  In terms of your question, I believe the answer to your question is clearly addressed in the federal regulations implementing IDEA at 34 CFR §300.502(b)(4) (see below) where it states that while a school district “may” ask for the reasons for a parent’s request for an IEE the parent does not have to provide a reason for requesting an independent evaluation.  Further, if the school delays responding to your request until you provide the reason for the request this is a violation of the regulations and you can file a complaint with your local ISD or the Michigan Department of Education.

 

As to identifying which evaluation you disagree with, there is what I call a “matching theory” involved in IEE requests.  Before you can request an IEE the school first has to have conducted an evaluation into a specific area of the suspected or actual disability.  For example, if the school conducted a speech-language evaluation and you disagreed with it you can then request a district funded independent speech-language evaluation, but not some other evaluation.  Therefore, the question as to which of the two evaluations you are disagreeing with is appropriate.

 

Schools can also establish “reasonable” financial and geographic limitations on publicly funded independent evaluations.  However, the must accommodate requests for higher payments or a wider geographic area if the parent can demonstrate unique circumstances.  With the clients I represent I suggest to my clients to call each of the evaluators on the list if the schools provides of “accepted evaluators” and interview each of them as to their experience with evaluating students with the same mix of disabilities that their child has.  I also suggest they ask how many referrals they derive from the schools, as a parent wants to make sure that an  “independent evaluation” is truly independent.  If the results of the notes the parent takes during these interviews show that none of the recommended evaluators can address the child’s unique needs, then the parent needs to go back to the school officials and explain the unique circumstances and request additional funding or a wider geographic area or both.  Finally, realize that while an IEP Team must “consider” the results of any IEE, they are not required to follow any of the recommendations contained in the evaluation.

 

34 CFR §300.502 Independent educational evaluation.

(a)  General. 

(1)  The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

(2)  Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.

(3)  For the purposes of this part:

(i)  Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

(ii)  Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.301.

(b)  Parent right to evaluation at public expense.

(1)  A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. 

(2)  If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either:

(i)  Initiate a hearing under §300.507 to show that its evaluation is appropriate; or

(ii)  Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under §300.507 that the evaluation obtained by the parent did not meet agency criteria. 

(3)  If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

(4)  If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation.  However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.

 

John Brower, JD
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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