OSEP Expands Parents’ Right to an IEE to an Area Not Previously Assessed by the School District’s Evaluation

In a letter dated February 23, 2015, the United States Department of Education’s Office of Special Education and Rehabilitative Services (“OSEP) stated that when a parent disagrees with a school district evaluation because a child was not assessed in a particular area, the parent has the right to request an Independent Educational Evaluation (“IEE”) to assess the child in that area for the purpose of determining whether the child has a disability and the nature and extent of the special education and related services that the child needs.

School districts have previously been able to refuse an IEE request if the school district had not first evaluated the student in the area of disability asserted by the parents. The school district was thus assured of having the opportunity to conduct its evaluation prior to any funding of an IEE. OSEP has challenged this restriction if a school district fails or neglects to evaluate a particular area of assessment in its evaluation, asserting that the parent can immediately seek a private evaluation in the area not assessed by the school district, and would not be required to ask for the school district to conduct its evaluation first.

OSEP cited IDEA regulations requiring that, in evaluating each child with a disability, the evaluation must be sufficiently comprehensive to assess the child in all areas related to the suspected disability, and must identify all of the child’s special needs, whether or not commonly linked to the disability category in which the child has been classified. 34 CFR §300.304(c)(4)(6).

The Individuals with Disabilities Education Act (“IDEA”) provides that 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 school district. “Evaluation” is defined as procedures used in accordance with the IDEA and its implementing regulations to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. Once a child has been fully evaluated in an initial evaluation, a decision has been rendered that a child is eligible under the IDEA, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.

Under 34 CFR §300.502(b)(2), if a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (k) initiate a hearing to show that its evaluation is appropriate; or (ii) ensure that an IEE is provided at public expense, unless the school district demonstrates in a hearing that the evaluation obtained by the parent did not meet agency criteria. A school district can impose cost and geographical parameters on IEEs.

OSEP responses are provided as informal guidance and are not legally binding, but represent an interpretation by the U.S. Department of Education of the IDEA in the context of specific facts presented in inquiries.

 

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