By Ira M. Fingles, Esq.
A: Independent educational evaluations are one of a parents’ most powerful rights in the special education system. Under Federal special education law, an IEE is defined 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.”
It is important to point out that an IEE is not limited to evaluating the student’s academic or cognitive skills. Such an evaluation might also include the evaluation of any skill or area of functioning related to the child’s educational needs, including psychoeducational assessment, assistive technology assessment, speech, OT and PT assessment, neurological functioning, adaptive physical education, sensory needs, etc.
A: Parents, guardians, or educational surrogates acting on behalf of the student can request independent evaluations. An adult student with disabilities may also request it.
Whenever a school district conducts an evaluation, the parent or guardian has a right to request an independent evaluation, if he or she disagrees with the findings in the evaluation performed by the school district. If the school district does not agree to the independent evaluation, the district must request a due process hearing to demonstrate that its evaluation was appropriate. The school district may not simply deny the parents’ request for an independent evaluation.
A: Evaluations are the cornerstone of the special education process — they provide information about whether the student continues to be in need of special education services, and if so, what services and supports are required in order to ensure that the student receives a free appropriate public education. They are one of the most important pieces of information considered by the Individualized Education Program (IEP) team, in developing an IEP for a student. In the event of a dispute, judges and hearing officers often place great weight on the information contained in the evaluations. Therefore, it is important that parents take the steps necessary to ensure that the evaluations of their child are accurate. Securing an independent evaluation can be a very effective way of ensuring that a student’s records provide an accurate picture of his or her abilities and needs.
A: There are relatively few court cases addressing whether a parent may request an independent FBA, in response to a school district-conducted FBA with which the parent disagrees. However, the vast majority of available cases, as well as guidance from the United States Department of Education (USDOE), suggest that parents may request an independent FBA under such circumstances.
A: Under New Jersey law, a parent may request an evaluation in any area, including areas not previously assessed by the school district. If the parent requests an evaluation in an area not previously assessed by the school district, the district must either provide the independent evaluation at no cost to the parent, or initiate due process to show that its evaluation is appropriate. A final determination is made following a hearing. Recently, the New Jersey Department of Education (NJDOE) clarified this rule in two separate memos (May 14, 2012, and October 1, 2013).
The NJDOE’s booklet, Parental Rights in Special Education (September 2012) states that a district cannot limit a parent’s right to an independent evaluation, by first conducting an assessment in an area not already addressed in the initial evaluation or reevaluation.
A: Any professional who holds the requisite licensure or certification to practice in the field at issue, may perform independent evaluations. School districts may offer suggestions as to where parents may obtain independent evaluations. However, parents are free to choose any professional who meets the above criteria.
A: School districts are allowed to place reasonable limitations on the cost of independent evaluations, but only if doing so will not impede the parents’ right to secure an independent evaluation. In other words, school districts may not limit the amount that they will pay for an independent evaluation, if doing so will effectively preclude the parent from securing the independent evaluation. Districts may not, for example, issue blanket “policies” with limits or caps on the cost of IEE.
ABOUT THE AUTHOR:
Ira M. Fingles, Esq. is a partner at Hinkle, Fingles Prior & Fischer, Attorneys at Law where he provides legal representation to individuals with disabilities in a variety of areas, including special education, benefits and services for adults with disabilities, guardianship and estate planning. He has argued precedent-setting cases in federal and state court, has written extensively on topics related to disability law and has presented to disability groups across the nation. He is Immediate Past President of the Autism Society of America – Greater Philadelphia Chapter, and is a member of the Penn Autism Network Advisory Committee.
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