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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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