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Special Education

Administrative Advisory SPED 2004-1:
Independent Educational Evaluations

To:Special Education Administrators, Charter School Leaders, Directors of Collaboratives, Directors of Approved Special Education Schools, and Other Interested Parties
From:Marcia Mittnacht
State Director of Special Education
Date:October 23, 2003

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The purpose of this advisory is to clarify school district responsibility under the federal and state special education law for providing a publicly funded independent educational evaluation (IEE) for a student. The federal regulation on IEEs is found at 34 CFR 300.502. The state regulation is found at 603 CMR 28.04(5). The text of these regulations is included at the end of this advisory.

When a student has been referred for a special education evaluation and the school district has obtained consent from the student's parent (or authorization from a hearing officer), the district must assess the student in all areas related to the suspected disability as well as conduct a comprehensive educational assessment. In addition the district may recommend or the parent may request health, psychological and home assessments if warranted.1 The goal is to provide the evaluation Team with "relevant functional and developmental information about the child,…and information related to enabling the child to be involved in and progress in the general curriculum …that may assist in determining (1) whether the child is a child with a disability under §300.7; and (2) the content of the child's IEP."2

Parents may obtain an independent educational evaluation of their child by appropriate professionals at their own expense at any time.3 In addition, federal and state law provide parents with a procedure for obtaining public funding of an IEE if they disagree with the school district's evaluation.4 This IEE is to be conducted by a qualified examiner who is not employed by the responsible school district.5 If the parent requests an IEE at public expense, the school district must either pay for the IEE or, within five days, request a determination from the Bureau of Special Education Appeals (BSEA) that the district's evaluation was comprehensive and appropriate. If the BSEA hearing officer decides the district's evaluation was comprehensive and appropriate, the parent still has the right to obtain an IEE but not at public expense.6

Massachusetts law elaborates on the basic rules for IEEs. In 2000, the state special education statute (M.G.L. c. 71B, § 3) was amended to allocate costs for IEEs between the district and the parent on a sliding fee basis for income eligible families.7 For example, if the student is eligible for free or reduced cost lunch, or is a state ward, or the family's income is equal to or less than 400% of the federal poverty guidelines, the district must pay the entire cost of the IEE. The right to this publicly funded IEE applies for up to 16 months from the date of the evaluation with which the parent disagrees.8 If a parent does not wish to provide the necessary financial information to the school district or does not meet the income eligibility standards, the parent may still request an IEE, but the request is governed by the federal standard. The federal rules on IEEs include a provision that prohibits Massachusetts from imposing a limit of 16 months on the parent's right to request an IEE.9 Consistent with the federal standard, the school district shall either agree to pay for the IEE or within five school days proceed to the BSEA to show that its evaluation was comprehensive and appropriate.10

Within 10 school days from the time the school district receives the report of the IEE, the Team shall reconvene and consider the IEE and whether a new or amended Individualized Education Program (IEP) is appropriate.11

The Department has been asked to clarify an issue related to the timing of a publicly funded IEE. Generally, a parent requesting an IEE will do so well within 16 months of the date of the evaluation with which the parent disagrees. If more than 16 months have elapsed since the school district evaluated the student, the original assessment information may be out of date. In that case, if a parent requests an IEE, the best practice would be for the district to seek consent from the parent to conduct its own updated assessments and evaluation of the student first, within the timelines required by the special education regulations.12 If the parent consents to the evaluations by the district, then once the district has completed an up-to-date evaluation, if the parent disagrees with it, then the parent has the right to request an IEE, and the district's obligations with respect to payment for the IEE are as set forth in the regulations.

Another issue the Department has been asked to clarify concerns a request by a parent for an IEE in an area of suspected disability that has not been assessed by the school district. Generally, a parent who disagrees with a school district's evaluation will indicate the reason for the disagreement, although the school district may not require the parent to do so.13 If the parent says the district's evaluation was deficient not because of disagreement with particular assessments, but because the district did not conduct one or more additional assessments the parent believes are warranted, the question is whether the school district may complete the additional assessment(s) itself, before the IEE.

There is some ambiguity in state regulation 603 CMR 28.04(5)(d), which says: "If the parent is requesting an evaluation in an area not assessed by the school district…the school district shall respond in accordance with the requirements of federal law." The federal law premises the right to a publicly funded IEE on the parent's disagreement with the school district's evaluation.14 While one could view this situation as a disagreement between the parent and the school district about the evaluation, it is also an opportunity for the district and the parent to work together to identify and address the student's needs. Under these circumstances, the best practice would be for the school district to review its evaluation and determine whether the requested assessment(s) would provide needed additional or new information about the student's disability and if so, offer to conduct the additional assessment(s) itself with the parent's consent. Once the district has completed the additional assessment(s), the Team may develop or modify the student's IEP based on the expanded evaluation and the dispute may be resolved. If, however, the parent disagrees with the district's proposal to conduct the evaluation or with the now-expanded evaluation, then the parent still has the right to request an IEE, and the district's obligations with respect to payment for the IEE are as set forth in the regulations.

SUMMARY

The special education evaluation process requires the school district to assess the student in all areas related to the suspected disability as well as conducting a comprehensive educational assessment. Parents have an opportunity to request publicly funded independent educational evaluations (IEEs) of their child if they disagree with the results of an evaluation by the school district. If the parent requests an IEE at public expense, the school district must either pay for the IEE or, within five days, request a determination from the Bureau of Special Education Appeals (BSEA) that the district's evaluation was comprehensive and appropriate. The federal standard for IEEs is not time limited.

Under Massachusetts law, school districts are required to provide publicly funded IEEs on a sliding fee scale for students whose families meet certain income criteria. This sliding fee scale provision applies to requests for an IEE made within 16 months of a contested evaluation. The application of the sliding fee scale is detailed in Administrative Advisory SPED 2001-3 webpage.

Within 10 school days from the time the school district receives the report of the IEE, the Team shall reconvene and consider the IEE and whether a new or amended Individualized Education Program (IEP) is appropriate.

If a parent requests an IEE more than 16 months after the school district evaluated the student, the best practice would be for the district to seek consent from the parent to conduct its own updated assessments and evaluation of the student first, within the timelines required by the special education regulations.

If a parent requests an IEE in an area not assessed by the school district, the best practice would be for the school district to review its evaluation and determine whether the requested assessment(s) would provide needed additional or new information about the student's disability and if so, offer to conduct the additional assessment(s) itself with the parent's consent.

Parents may obtain an IEE at their own expense at any time.

Thank you for your attention to this memorandum and for assuring that students with disabilities receive appropriate services. If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department of Elementary and Secondary Education (781-338-3700).

Appendix: Federal and State Regulations on Independent Educational Evaluations

Federal regulation (IDEA): 34 CFR 300.502

Sec. 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section. (2) Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section. (3) For the purposes of this part-- (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and (ii) 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, consistent with Sec. 300.301.

(b) Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either-- (i) Initiate a hearing under Sec. 300.507 to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under Sec. 300.507 that the evaluation obtained by the parent did not meet agency criteria. (3) If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.

(c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at private expense, the results of the evaluation-- (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) May be presented as evidence at a hearing under this subpart regarding that child.

(d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

(e) Agency criteria. (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation. (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
(Authority: 20 U.S.C. 1415(b)(1))

State regulation: 603 CMR 28.04(5):

28.04(5) Independent education evaluations. Upon receipt of evaluation results, if the parent disagrees with an initial evaluation or re-evaluation completed by the school district, then the parent may request an independent educational evaluation.

(a) All independent educational evaluations shall be conducted by qualified persons who are registered, certified, licensed or otherwise approved and who abide by the rates set by the state agency responsible for setting such rates. Unique circumstances of the child may justify an individual assessment rate that is higher than that normally allowed.

(b) The parent may obtain an independent educational evaluation at private expense at any time.

(c) Public funding of independent evaluations - When the parent requests public funding for an independent evaluation, the district shall abide by the following provisions for a sliding fee scale:

(i) If the student is eligible for free or reduced cost lunch or is in the custody of a state agency with an Educational Surrogate Parent appointed in accordance with federal law, then the school district shall provide, at full public expense, an independent educational evaluation that is equivalent to the types of assessments done by the school district. No additional documentation of family financial status is required from the parent.

(ii) If the family financial status is not known, the district shall offer the parent information about the sliding fee scale and the opportunity to provide family income information to determine if the family may be eligible for public funding of all or part of the costs of an independent educational evaluation. Provision of financial information by the family is completely voluntary on the part of the family. The lack of financial information provided by the family will disqualify the family from such additional public funding of all or part of the costs of an independent educational evaluation under 603 CMR 28.04(5)(c) but shall not limit the rights of parents to request public funding under 603 CMR 28.04(5)(d).

(iii) If the family agrees to provide financial information, such information shall include anticipated annual income of the family, including all sources of income and verifying documents. Financial information shall be reviewed by the district, shall be kept confidential during review by the district, shall not be copied or maintained in any form at the district except to note that information was provided and reviewed and met or did not meet sliding fee scale standards. Financial documents shall be promptly returned to the parent(s) upon the district's determination of financial income status.

(iv) The district shall consider family size and family income information in relation to Federal Poverty Guidelines and shall contribute public funds to the costs of the independent educational evaluation according to the following standards:

aa. If the family income is equal to or less than 400% of the federal poverty guidelines, the district shall pay 100% of the costs of an independent educational evaluation.

bb. If the family income is between 400% and 500% of the federal poverty guidelines, the district shall pay 75% of the costs of an independent educational evaluation.

cc. If the family income is between 500% and 600% of the federal poverty guidelines, the district shall pay 50% of the costs of an independent educational evaluation

dd. If the family income is over 600% of the federal poverty guidelines, the district shall have no obligation to cost-share with the parent.

(v) When the parent seeks and receives public funding for an independent educational evaluation under these provisions, the parent may request independent assessments in one, more than one, or all of the areas assessed by the school district.

(vi) The right to this publicly funded independent educational evaluation under 603 CMR 28.04(5)(c) continues for sixteen (16) months from the date of the evaluation with which the parent disagrees.

(d) If the parent is requesting an evaluation in an area not assessed by the school district, the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, the school district shall respond in accordance with the requirements of federal law. The district shall either agree to pay for the independent educational evaluation or within five school days, proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district's evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent educational evaluation requested by the parent.

(e) Whenever possible, the independent educational evaluation shall be completed and a written report sent no later than thirty (30) days after the date the parent requests the independent educational evaluation. If publicly funded, the report shall be sent to the parents and to the school district. The independent evaluator shall be requested to provide a report that summarizes, in writing, procedures, assessments, results, and diagnostic impressions as well as educationally relevant recommendations for meeting identified needs of the student. The independent evaluator may recommend appropriate types of placements but shall not recommend specific classrooms or schools.

(f) Within ten (10) school days from the time the school district receives the report of the independent educational evaluation, the Team shall reconvene and consider the independent educational evaluation and whether a new or amended IEP is appropriate.


1603 CMR 28.04(2)(a) and (b), 34 CFR 300.532.
234 CFR 300.532.
3603 CMR 28.04(5)(b).
420 USC 1415(b)(1); 34 CFR 300.502(b)(1), 603 CMR 28.04(5).
5603 CMR 28.04(5), 34 CFR 300.502(a)(3)(i).
6603 CMR 28.04(5)(d), 34 CFR 300.502(b).
7The application of the sliding fee scale is detailed in Administrative Advisory SPED 2001-3 webpage.
8603 CMR 28.04(5)(c)(vi).
934 CFR 300.502(e)(2)
10603 CMR 28.04(5)(d).
11603 CMR 28.04(5)(f).
12If the parent refuses consent to the evaluation(s) proposed by the district, then the district must respond in accordance with the federal rules for IEE.
1334 CFR 300.502(b)(4).
1434 CFR 300.502(b).



Last Updated: October 27, 2003
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