Independent Educational Evaluations:
Will the Real Regs Please Stand?

Steve C. Imber, Ph.D.

Steve C. Imber, Ph. D. Professor of Special Education Rhode Island College President of Psychoeducational Consultants One Davol Square, Suite 111 Providence, RI 02903

On February 23, 2015 The Office of Special Education and Rehabilitative Services (OSERS) of the U.S. Department of Education (ED) issued the policy letter 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 EDs Memorandum to McDonald regarding Independent Educational Evaluations (IEEs), March 28, 2012. That 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.”

The ED Memorandum to McDonald 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 particularly noteworthy because it continues ED's 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), also under the ED, 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 thirty 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.

In this troubled time 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 ED 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."

MORE: OSEP policy letters on Independent Education Evaluations issued from 2001-present.