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Monday, September 12, 2016

Procedural Safeguards: The Series - Part IV

From Jim Gerl's Special Education Law Blog

By Jim Gerl. Esq.
September 10, 2016

This is the fourth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act.
  • See Part III HERE.

Independent Educational Evaluations

The parents of a child with a disability have the right to an independent educational evaluation (hereafter sometimes referred to as “IEE.”)
IDEA Section 615(b)(1).

The IEE must be provided by the school district at public expense unless the school district files a due process complaint and shows that its evaluation was appropriate.
34 CFR Section 300.502(b).

See Stepp ex rel MS v Midd West Sch Dist (JG) 65 IDELR 46 (MD Penna 2/23/15) {affirming HO decisions @112 LRP 45128 and 113 LRP 16891} The Court agreed with HO that parent was not entitled to IEE at public expense because the SD evaluation was appropriate.

The U. S. Supreme Court found the right to an IEE to be a very important safeguard for parents, and relied on it in part, in rejecting the argument that school districts had an advantage in terms of expertise and knowledge.
Schaffer v. Weast 546 U.S.49, 126 S.Ct. 528, 44 IDELR 150 (2005).

Parents may obtain only one IEE at public expense each time the school district conducts an evaluation with which the parents disagree.
34 CFR Section 300.502(b)(5).

The purpose of this regulation is to protect the parents’ right to an IEE (OSEP rejected a suggestion limiting a parent to one IEE in a child’s school career), while ensuring that a school district does not have to bear the cost of multiple IEEs concerning a single disagreement.
71 Fed. Register No. 156 at page 46690 (August 14, 2006).

OSEP has noted that where a hearing officer orders an IEE, parental consent is needed for the release of education records to the independent evaluator. If the parent refuses to consent, the hearing officer could decide to dismiss the parent’s complaint.
71 Fed. Register No. 156 at page 46690 (August 14, 2006).

If a parent obtains an IEE at public expense, but disagrees with the result, the school district could introduce it as evidence in a due process hearing.
71 Fed. Register No. 156 at page 46690 (August 14, 2006).

Letter to Savitt 64 IDELR 250 (OSEP 2/10/14)

Where an IEE is publicly funded, SEAs and LEAs cannot have policies restricting the amount of time that third party evaluators may conduct classroom observations unless the SD similarly limits the duration of classroom observations by SD evaluators.

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