NHEG EDGuide December 2016

Right to Obtain an

Right to Obtain an Independent Educaonal Evaluaon by Wayne Steedman, Esq. If you, as a parent of a child with a disability, do not agree with the results of the individualized evaluaon of your child, as conducted by the school system, you have the right to obtain what is known as an Independent Educaonal Evaluaon, or an IEE(§300.502). This means that you may ask that a professional, competent evaluator who is not employed by the school system conduct another evaluaon of your child. If you request an IEE of your child, the school must provide you with informaon about where you can obtain such an evaluaon. Who pays for the IEE? What else should a parent know about IEEs? Where are IEEs in IDEA’s regulaons? Who pays for the independent evaluation? The answer to this queson is that some IEEs are conducted at public expense (meaning, the school system pays for the evaluaon), and others are paid for by the parents. Let’s see how that works out! Let us say that you are the parent of a child with a disability and you don’t agree with the school’s evaluaon of your child. You have the right to request an IEE at public expense. This means that the school system would pay for an enrely new and independent evaluaon of your child. The school may grant your request and pay for the IEE, or it may file a due process complaint and request a due process hearing to demonstrate that its own evaluaon was appropriate. The school may ask you why you object to its evaluaon, but it may not require that you explain, or cause unreasonable delays in providing the IEE at public expense or in iniang due process to defend its evaluaon. If the school iniates due process, and the final decision of the hearing officer is that the evaluaon of the school was appropriate, you sll have the right to an IEE but not at public expense. If you have an IEE conducted of your child, you will have to pay for it yourself. Somemes, as part of a due process hearing, the hearing officer will ask that an IEE be conducted of the child. If this happens, the evaluaon must always be conducted at public expense. When an IEE is paid for with public funds, it must comply with the same criteria that the school system uses when conducng an inial evaluaon of a child. The school must tell parents what those criteria are—such as the locaon of the evaluaon and the qualificaons of the examiner. These criteria must be the same as those used by the school system for its own evaluaon to the extent that these are consistent with the parents’ right to an IEE. Nonetheless, the school system may not impose other condions or deadlines with respect to conducng the IEE at public expense. (Continued next page) 64

Right to Obtain an Independent Educaonal Evaluaon (Continued from previous page) by Wayne Steedman, Esq. What else should a parent know about IEEs? As a parent of a child with a disability, you should know that you have a right to only one IEE at public expense each me the school conducts an evaluaon of your child and you disagree with the findings of that evaluaon. Of course, you always have the right to have your child evaluated independently at your own expense. (Note: When the same tests are repeated in a short period of me, the validity of the results decreases.) The results of any evaluaon must be considered by the school system (if that evaluaon complies with the criteria used by the school system) in making any decision with respect to providing your child with a free appropriate public educaon (FAPE). The results may also be presented as evidence in a due process hearing. Back to top Where are IEEs discussed in IDEA’s regulations? You’ll find IDEA’s provisions regarding IEEs at §300.502 of its final regulaons. We’ve put these below for parents who would like to read IDEA’s exact words. § 300.502 Independent educaonal evaluaon. (a) General. (1) The parents of a child with a disability have the right under this part to obtain an independent educaonal evaluaon of the child, subject to paragraphs (b) through (e) of this secon. (2) Each public agency must provide to parents, upon request for an independent educaonal evaluaon, informaon about where an independent educaonal evaluaon may be obtained, and the agency criteria applicable for independent educaonal evaluaons as set forth in paragraph (e) of this secon. (3) For the purposes of this subpart— (i) Independent educaonal evaluaon means an evaluaon conducted by a qualified examiner who is not employed by the public agency responsible for the educaon of the child in queson; and (ii) Public expense means that the public agency either pays for the full cost of the evaluaon or ensures that the evaluaon is otherwise provided at no cost to the parent, consistent with §300.103. (b) Parent right to evaluaon at public expense. (1) A parent has the right to an independent educaonal evaluaon at public expense if the parent disagrees with an evaluaon obtained by the public agency, subject to the condions in paragraphs (b)(2) through (4) of this secon. (2) If a parent requests an independent educaonal evaluaon at public expense, the public agency must, without unnecessary delay, either— (i) File a due process complaint to request a hearing to show that its evaluaon is appropriate; or (ii) Ensure that an independent educaonal evaluaon is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluaon obtained by the parent did not meet agency criteria. (3) If the public agency files a due process complaint noce to request a hearing and the final decision is that the agency’s evaluaon is appropriate, the parent sll has the right to an independent educaonal evaluaon, but not at public expense. (Continued next page) 65