Scope
Where a parent of a child with a suspected educational disability disagrees with a local educational agency either on a determination regarding the child’s eligibility for special education services, or on the scope or particulars of a proposed plan of services resulting from the agency’s evaluation, a federal statute provides procedural safeguards for the benefit of the child and his parents. That statute is known as the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C.A. §§ 1400 et seq.
Pursuant to regulations at 34 C.F.R. § 300.502, a parent who disagrees with the public agency’s evaluation has the right to obtain an independent educational evaluation (“IEE”) at public expense, subject to certain conditions. If a parent requests an IEE at public expense, the agency must, without unnecessary delay, either file a complaint to request an administrative agency hearing (“due process hearing”) to show that its evaluation was appropriate, or ensure that an IEE is provided at public expense.
The IEE conceptually represents a sort of second opinion, to be provided by a qualified professional not in the employ of the local educational agency, regarding the child’s status with respect to disability classifications. The regulation further provides that “at public expense” means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.
If the public agency initiates a hearing and the final decision is that the agency’s evaluation was appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.
The detailed article by Roger on this topic collects and analyzes the state and federal cases which have construed or applied the pertinent federal regulation, 34 C.F.R. § 300.502, and prior codifications of the provisions now found there, providing for an independent educational evaluation under the IDEA. The article was first published in 2016, in book form and online, by Thomson Reuters (West Publishing Co.), and is regularly updated online. For purposes of citation in law-related materials, the article is cited as:
Construction and Application of 34 C.F.R. § 300.502, and Prior Codifications, Providing for Independent Educational Evaluation Under Individuals With Disabilities Act (20 U.S.C.A. §§ 1400 et seq.), 10 A.L.R.Fed. 3d Art. 2 (originally published 2016).
Table of Contents
I. PRELIMINARY MATTERS
- § 1 Scope
- § 2 Summary and Comment
- § 3 Practice Pointers
II. INDEPENDENT EDUCATIONAL EVALUATION AT PUBLIC EXPENSE: DETERMINATIONS ON ENTITLEMENT TO SERVICES AND REIMBURSEMENT
- A. Determinations Based on Parent/Guardian Satisfaction of Prerequisites
- § 4 Requirement of Evaluation by Public Agency, Obligation for Services Established or Violated
- § 5 Requirement of Evaluation by Public Agency, Obligation for Services Not Established
- § 6 Requirement of Parent Disagreement with Evaluation, Obligation for Services Established
- § 7 Requirement of Parent Disagreement with Evaluation, Obligation for Services Not Established
- § 8 Requirement of Request for Independent Educational Evaluation, Obligation for Services Established
- § 9 Requirement of Request for Independent Educational Evaluation, Obligation for Services Not Established
- § 10 Requirement That Public Agency Act Without Unnecessary Delay, Obligation for Services Established
- § 11 Requirement That Public Agency Act Without Unnecessary Delay, Obligation for Services Not Established
- § 12 Requirement of Due Process Complaint, Obligation for Services Established
- § 13 Requirement of Due Process Complaint, Obligation for Services Not Established
- § 14 Equitable Basis for Imposition of Obligation to Fund Independent Educational Evaluation at Public Expense
- B. Determinations Based on Appropriateness of Public Agency Evaluation
- § 15 Evaluation Not Appropriate, Right to Independent Evaluation at Public Expense Established
- § 16 Evaluation Appropriate, Right to Independent Evaluation at Public Expense Not Established
- C. Determinations Based on Attributes of Independent Educational Evaluation
- § 17 Conformity of Independent Evaluation with Agency Criteria, Reimbursement Obligation Established
- § 18 Conformity of Independent Evaluation with Agency Criteria, Reimbursement Obligation Not Established
- D. Duty to Consider Independent Evaluation
- § 19 Independent Evaluation Conducted, Duty to Consider, Order or Decision Enforcing Duty
- § 20 Independent Evaluation Conducted, Duty to Consider, Order or Decision Without Enforcement of Duty
- E. Particular Services and Expense in Connection with Independent Evaluation
- § 21 Particular Services and Expenses in Connection with Independent Evaluation, Classroom Observation, Agency Obligated to Fund or Permit
- § 22 Particular Services and Expenses in Connection with Independent Evaluation, Classroom Observation, Agency Not Obligated to Fund or Permit
- § 23 Particular Services and Expenses in Connection with Independent Evaluation, Travel Expense, Agency Obligated to Pay
- § 24 Particular Services and Expenses in Connection with Independent Evaluation, Travel Expense, Agency Not Obligated to Pay
- § 25 Particular Services and Expenses in Connection with Independent Evaluation, Other Expenses, Agency Obligated to Fund
- § 26 Particular Services and Expenses in Connection with Independent Evaluation, Other Expenses, Agency Not Obligated to Fund
- F. Commissioning of Independent Educational Evaluation by Hearing Officer for Use in Due Process Administrative Hearing
- § 27 Order for Independent Evaluation for Use by Hearing Officer in Due Process Administrative Proceeding, Basis for Order Established
- § 28 Order for Independent Evaluation for Use by Hearing Officer in Due Process Administrative Hearing, Basis for Order Not Established
III. ADDITIONAL CONSIDERATIONS
- A. Evidence
- § 29 Burden of Proof, Burden Met
- § 30 Burden of Proof, Burden Not Met
- § 31 Evidence, Classification of “Appropriateness” of Evaluation, as Issue of Fact or Law
- B. Other Considerations
- § 32 Mootness, IEE-Related Claim Moot
- § 33 Mootness, IEE-Related Claim Not Moot
- § 34 Waiver, IEE-Related Claim Waived
- § 35 Waiver, IEE-Related Claim Not Waived
- § 36 Remand