INDEPENDENT EDUCATIONAL EVALUATIONS: Will the Real Regs please Stand?

INDEPENDENT EDUCATIONAL EVALUATIONS BY STEVE C. IMBER, PH. D.
The issue raised by OSERS Letter to Baus addresses a very important issue, namely whether the parent can include skills not addressed by the SDs evaluation within an Independent Educational Evaluation.

On February 23, 2015 The Office of Special Education and Rehabilitative Services (OSERS) of the Department of Education (DOE) issued the policy Letter to Baus. Ms. Baus asked whether a parent had a right to request could an Independent Educational Evaluation (IEE) in an area that was not
previously assessed by a school district evaluation.

OSERs cited Federal Regulation under 34 CFR §300.502(b)(1) of the IDEA, a parent of a child with a disability is entitled to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency. Evaluation is defined at 34 CFR §300. 15 as procedures used in accordance with 34 CFR §§300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. An initial evaluation of the child is the first completed assessment of a child to determine if he or she has a disability under IDEA, and the nature and extent of special education and related services provided. 34 CFR §300.30 l.

Once a school district has conducted its own evaluation, a parent has the right to obtain an IEE at the public expense. A school district (SD) has the right to initiate a Due Process Hearing to demonstrate the appropriateness of its evaluation. If the SD prevails, then the parent has the right to an IEE but not at public expense.

The issue raised by OSERS Letter to Baus addresses a very important issue, namely whether the parent can include skills not addressed by the SDs evaluation within an IEE. OSERS is certainly
noting that the parent has the right to address this issue.

What is especially significant is that OSERS makes no reference to the DOEs Memorandum to McDonald regarding Independent Educational Evaluations (IEEs), March 28, 2012. The
Memorandum stated that,
“Based on review of the New Jersey regulation, OSEP’s assessment is that N.J.A.C 6A:14-2.5(c)(1) limits the parents’ rights to an IEE by giving the public agency an opportunity to conduct an assessment in an area not covered by the initial evaluation or reevaluation before the parents are granted the IEE. In order to receive its Federal Fiscal Year (FFY) 2012 Part B grant award, the State will need to provide specific written assurance to OSEP that the State will: (1) Revise New Jersey regulation N.J.A.C 6A:14-2.5(c)(1) to eliminate the provision that, “If a parent seeks an independent evaluation in an area not assessed as part of the initial evaluation or a reevaluation, the school district shall first have the opportunity to conduct the requested evaluation.” (2) Ensure compliance in the interim throughout the FY 2012 grant period with the specific requirements of 34 CFR§300.502; and (3) Send a memorandum to all Local Education Agencies to inform them of the changes to the regulation and the need to comply with the requirements in 34 CFR§300.502.”

This USDOE Memorandum is particularly significant because New Jersey’s regulations limited a parent’s right to an unfettered IEE. Clearly, one of the reasons that a parent would seek to have an IEE is to have a thorough evaluation, especially when a school district did not elect to evaluate an area that the parent believes may identify an undisclosed area of disability.

The Letter to Baus is of particular concern because the USDOE has a history of insuring that local and state agencies do not issue policies which violate §300.502 (e) (2) “Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.” Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))

In 1988, the Office of Special Education Programs (OSEP), which is also under the USDOE, issued a Letter to Gray, which required the Department of Education in Texas to cease and desist imposing its policy of allowing SDs to have 30 days to correct any issues that its evaluations created for parents.

In 1992, OSEP issued a Letter to Imber to redirect the State of Rhode Island to not impose an expectation that parents must request an IEE in advance or risk the opportunity to have a publically funded IEE.

In 2001, OSEP issued a Letter to Petska to the Wisconsin State Department of Instruction because it imposed substantial limitations on those who could conduct IEES.

These are troubled times, where SDs and states continue to attempt to erode Procedural Safeguards that were granted to parents under P.L. 94-142, the Education of All Handicapped Children Act (1975).

It is hoped that the USDOE will continue to aggressively enforce the federal regulations pertaining to §300.502 (e) (2) “Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.”

ABOUT THE AUTHOR:
Steve C. Imber, Ph. D. is a professor of Special Education at Rhode Island College. He has conducted independent educational evaluations since 1977 and has presented nationally and written about IEEs since 1992. He serves as a consultant and an expert witness on matters pertaining to Special Education.

 

 

 

 

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