More Evaluation Rights

Submitted by Tim on Fri, 12/14/2012 - 03:19 PM

The 11th Circuit Court of Appeals1 recently  issued an opinion in Phillip C. v. Jefferson County Board of Education affirming the important parental right known as the independent educational evaluation (“IEE”), stating:

[States] must reimburse parents for the cost of an IEE in order to ensure that parents can exercise their right to an independent expert opinion, which is an essential procedural safeguard. . . . The right to a publicly financed IEE guarantees meaningful participation throughout the development of the IEP.

School districts are always required to consider the opinions of medical professionals and other evaluators, even if the evaluator was not employed by the school district or the evaluations was not created at the request of the school district. This obligation follows from the general principle that school districts must be proactive in figuring out the special needs of a child and determining the appropriate support services. Specifically, federal regulations require school districts to consider evidence from any evaluations that a parent provides.2 But in the real world, finding an expert evaluator willing to spend the time to evaluate your child appropriately can be very expensive. This problem is addressed by that parents’ right to an independent educational evaluation at public expense.

Independent evaluation rights are the natural counterpart to school-based evaluation rights, which I have discussed previously. In essence, parents have the right to a second opinion from another expert – paid for by the school district. Because one possible worry is that an expert’s opinion is influenced by the employing school district, the IEE must be performed by an expert who is not employed by the school district that the child is attending.

To invoke your right to an IEE, you only need to tell the school district that you disagree with an evaluation. “If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay” pay for the evaluation or initiate litigation.3 If the school district does not want to pay, it must prove that its evaluation was appropriate – basically that the new evaluation is not necessary at all. It's very hard for a school district to prove that because more information about a child’s problems and possible solutions is always going to be useful in implementing the education plan that has been individualized for the particular student.

Some school districts impose restrictions, such as caps on the reimbursement amount or restriction to local evaluators. Although some reasonable restrictions can be enforced, the law is clear that these restrictions cannot be strictly enforced if they prevent you from meaningfully receiving your right to independent educational evaluation. For example, the school district cannot set the reimbursement rate so low that no provider is willing to work that rate. Further, the school district’s limitations on independent evaluations cannot be more restrictive than the qualifications the district applies to its own evaluators.4

1. The Federal Court of Appeals that covers Georgia.

2. 34 C.F.R. § 300.502(c)

3. 34 C.F.R. § 300.502(b)(2) (emphasis added)

4. 34 C.F.R. § 300.502(e)

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