Question from parent:
My son was assessed by his school for special education eligibility and it was determined that he’s not eligible. I disagree with the results of the school’s evaluation. What can I do?
Answer from Students’ Rights at Timoney Knox, LLP:
It’s frustrating to encounter a setback like this. Fortunately, you have the right to disagree with a school’s evaluation — and to take steps to address it.
Informal ways to address your concerns can be effective. Writing a letter to the evaluation team that details the specific areas missed is one of these. But if this has already been done or you don’t feel comfortable doing so, then it’s time to request that your son be reevaluated by an independent evaluator.
An Independent Educational Evaluation or IEE uses an outside professional who isn’t employed by the school to determine whether your son is eligible for special education.
There are two ways to obtain an IEE:
- ask that the school district pay for the evaluation or
- pay for the IEE on your own.
Let’s explore both of these.
Option 1: Request that the school district fund an IEE
By law you have the right to request an Independent Educational Evaluation at public expense. You must notify the school district that you are in disagreement with the evaluation and request that it pay for an IEE.
When the school district receives your request, it has two options:
- pay for an IEE performed by an evaluator of your choice or
- file a due process complaint claiming that its evaluation was “appropriate”.
If the school district decides to file a complaint and go to a hearing, the hearing officer will determine whether the evaluation was appropriate.
If the hearing officer determines that the evaluation was not appropriate (for example, it was not comprehensive and did not assess your son in all areas of suspected disability), you now have the right to obtain an independent evaluation at public expense.(1)
The school district must respond to your request for an IEE “without unnecessary delay”. What this term means isn’t always clear(2) but if it seems the school district is stalling, you can file a state compliance complaint. This asks the Pennsylvania Department of Education (or your state’s Department of Education) to determine whether the school district should fund an IEE.
If the school district agrees to pay for the IEE, you don’t need to choose from its list of evaluators. As long as the evaluator you’ve chosen meets the same criteria the school district uses when conducting an evaluation, it is up to you. The school district may ask you questions about your evaluator just to be sure he meets these qualifications. The school district must explain its evaluation criteria, such as the location of the evaluation and the qualifications of the evaluator.
If an evaluator you’ve selected does not meet the criteria, you must be given an opportunity to argue why this person with this particular expertise is necessary to conduct the IEE. Determinations are required to be made on a case-by-case basis.
The school system can’t impose any other conditions or deadlines for the IEE.
You may need some guidance along the way. Our Students’ Rights due process team can help you navigate these steps.
Option 2: Pay for an IEE yourself
Regardless of whether you are able to get the school district to fund an IEE, you have the right to obtain one at your expense at any time.
When you have obtained the IEE and are satisfied with it, you should provide a copy to the school district and request an IEP meeting to review the results. The school district must consider the results in any decision it makes about your child. This could be regarding the provision of a free appropriate public education (FAPE) to your son, whether your son is eligible for an IEP, or if he already had an IEP whether to make changes to his IEP.
You should request that someone from the school district attend the IEP meeting that authorized to respond to the IEE on behalf of the school district. You should also inform the school district in writing of the recommended services or placement in the IEE that you are requesting for your child. This will allow the school district time to provide you with “prior written notice” if it refuses to provide the services or placement recommended in the IEE. The IEE may also be presented as evidence in a due process hearing.
You may be able to seek reimbursement from the school district for the cost of the IEE if the district accepts the recommendations made in it.
Whatever you choose to do, just remember that you have rights and responsibilities as you seek special education for your child. Contact our education law attorneys if you need more information.
(1) 34 C.F.R. 300.502
(2) 34 C.F.R. 300.502(b). See e.g., D.H. v. Manheim Twp. Sch. Dist., No. Civ. A. 05-113, 2005 U.S. Dist. LEXIS 39756 (E.D. Pa. Nov. 29, 2005) (finding that the school district acted with unnecessary delay when it waited eight months to object to the parents’ IEE request). But see L.S. v. Abington Sch. Dist., No. 06-5172, 2007 U.S. Dist. LEXIS 73047, at *33 (E.D. Pa. Sep. 28, 2007) (finding that the six week time period after the parents’ objected to the evaluation was not unnecessary delay because those six weeks were largely comprised of the school district’s efforts to resolve the dispute and move the process along).