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Independent Educational Evaluations
by
Wayne Steedman

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Note to the reader - this article is based on IDEA 97 and the 1999 regulations. The new statute is known as IDEA 2004 and those corresponding regulations were issued in 2006. The 2006 IEE regulation is located at 34 C.F.R. 300.502. The link to IDEA 2004, the 2006 regulations and the important "Commentary" is located at: http://www.wrightslaw.com/idea/law.htm. For more about IEE's, in the Wrightslaw Google search engine box insert IEE and once those articles are reviewed, do it again, but this time use all three words with quotations before and after. End of Note

                ***********************


Parents and school personnel are often confused about what constitutes an independent educational evaluation (IEE) and how the evaluation is to be used. This article addresses what constitutes an IEE, the value of an IEE, what the law requires of school districts, and who is financially responsible for an IEE.

What is an IEE?

Federal law defines an IEE broadly as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. 300.503.

Thus, an IEE is not limited to evaluating only a child's academic or cognitive skills, but may include the evaluation of any skill related to the child's educational needs. Evaluations of neurological functioning, adapted physical education, sensory needs, even music therapy, are but a few examples of the types of IEEs covered under the IDEA. Parents may obtain an IEE, for virtually any purpose if it impacts the child's education.

What is the Value of an IEE?

One goal of Congress in passing the 1997 Amendments to the IDEA was to strengthen the role of parents in the educational decision-making process. An IEE provides parents added authority at the IEP meeting. One court held:

"[T]he failure to receive and consider parental information, including evaluations they may obtain, directly denies parents the pivotal role they should enjoy in the development of their child's placement. This role includes not only providing evaluations or other information, but discussing such information. Consideration of such outside information also ensures that a program is individualized and provides a check on the judgments being made by school officials regarding the child." Community Consolidated Sch. Dist. No. 180, 27 IDELR 1004, 1005-06.

Federal regulations require that parents and school personnel are to be equal participants in the development of a child's IEP and that the parents' participation in the IEP process must be meaningful. Independent evaluations often provide support for the parents' opinion. When a school district refuses to consider an independent evaluation, it not only denies equal and meaningful input from the parents, but it also prevents important information from the child's evaluation from being considered in the development of the IEP.

Parents are not the only ones to find IEEs valuable. Sometimes, school districts request IEEs when they lack the personnel or expertise to conduct a particular type of evaluation. In other cases, a school district may seek an IEE to assuage parental concerns about the fairness or accuracy of an evaluation.

What is Required of School Systems?

The federal regulations direct school district to inform parents of their right to obtain an IEE, 34 C.F.R. §300.502(a), where they may obtain an IEE, id., and conditions for obtaining an IEE at public expense. 34 C.F.R §300.502(b).

Several sections of the federal regulations direct local school systems to ensure that such information provided by parents is properly considered. See 34 C.F.R. §§300.343(c)(2)(iii), 300.503(c), 300.533(a)(1)(i). The federal regulations even envision instances where the independent evaluation may be given greater weight than the school system's evaluation. 34 C.F.R. §300.502(b).

Consideration by the IEP team of parentally obtained evaluations is not discretionary, it is mandatory. 34 C.F.R. 300.503(c) ("If the parent obtains an independent educational evaluation at private expense, the results of the evaluation??(1) Must be considered by the public agency in any decision made with respect to the provision of a [free appropriate public education] to the child."). (Emphasis added).

When a parent presents an IEE to a school system, the IEP team is required to consider the evaluation. This does not mean that the school district must accept the findings or recommendations of the IEE. It means only that the IEP team must review the IEE, and discuss it as appropriate. Thus, in this regard, the requirements placed on the school district are fairly minimal.

However, a United States District Court in Maryland ruled that an IEP team's failure to consider the private evaluations submitted by the parents at an IEP meeting was such a serious violation of the IDEA that it alone constituted a denial of a free appropriate public education. DiBuo v. Bd. Of Educ. of Worcester County, slip no. S-01-1311 (Nov. 14, 2001).

Who is Financially Responsible for an IEE?

Generally, parents are responsible for the costs of an IEE. However, in certain circumstances the school district may be financially responsible.

If the school district does not have the personnel or resources to conduct an evaluation which an IEP team has identified is needed, the school district will have to obtain a private evaluation at its own expense. Or, if the school district determines that an IEE is needed or should be conducted for any reason, in most situations, the school district will have to pay for the evaluation.

When parents and the school district disagree about the need for an IEE, there are certain conditions by which a school district may be forced to pay for the IEE. If the parents present an evaluation to the IEP team which the school district previously refused to conduct, the school district may be required to reimburse the parents the costs of the evaluation if it is determined by the IEP team that the evaluation provided information which impacted the child's education, services or placement.

Additionally, if the parents disagree with an evaluation obtained by the school district and request an IEE at public expense, the school district will have to obtain the IEE and pay for it unless the school district requests a due process hearing and the hearing officer rules that an IEE is not needed. 34 C.F.R. 300. 503.

In other words, the school district cannot simply refuse the parents' request. It must either consent to the IEE at public expense, or request a due process hearing in an effort to prove to a hearing officer that the evaluation it completed was sufficient. Finally, if a hearing officer, during the course of a due process hearing, orders an IEE, it will be conducted at public expense. Id.

Conclusion

IEEs can be a valuable tool for parents and school districts in determining a child's educational needs and programming. The burden placed on school systems to consider a parentally obtained IEE is not severe by any means. But, failure to give due consideration to an IEE can result in an invalidation of the child's IEP.

One way parents can assume the role of equal participants in their child's educational programming is to obtain additional information from an IEE. School districts that welcome a parentally obtained IEE rather than viewing it with suspicion or hostility, will benefit from the additional information the IEE provides. When parents and school personnel work together, this is always in the child's best interest.

Useful Resources

Learn more about evaluations, tests and testing.

Learn more about procedural safeguards
that are designed to protect the rights of children with disabilities.

About the Author

Wayne Steedman is a partner in the law firm of Callegary & Steedman, P.A. His practice is devoted primarily to the representation of children with disabilities. He has represented his clients in administrative due process hearings and state and federal courts.

After the U. S. Supreme Court decision in Florence County v. Shannon Carter, Mr. Steedman represented Alex Gerstmyer in a tuition reimbursement case for a non-special ed school. Read about this case in Parents of Dyslexic Child Reimbursed for Tuition at Montessori School.

As a member of the Wrightslaw Speakers Bureau, Wayne Steedman provides training for parents, educators, advocate, attorneys, and others who want to ensure that children receive quality special education services.

Wrightslaw special education law & advocacy programs are designed to meet the needs of parents, educators, health care providers, advocates, and attorneys who represent children with disabilities.

Contact Info

Wayne Steedman
Callegary & Steedman, P.A.
301 North Charles Street, Suite 600
Baltimore, Maryland 21201
Phone - 410 576-7606
FAX - 410 576-0454
e-mail - info@callegarysteedman.com

 

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