This article originally appeared on the McAndrews Law website. Attorney Caitlin McAndrews wrote this and it is very important! It has pivotal information that parents of students with disabilities need to know about during the IEP process. Parents, even with the best of intentions, can make mistakes during this process. I agree with the author: give as much information as you possibly can to help your special needs child succeed!
Parents sometimes withhold information from School Districts, worried that the District will find a way to “use it against them.” This can include privately obtained evaluations, information from outside therapists or medical providers, or changes in medication. Though the instinct to protect your child’s privacy is understandable, withholding this type of information from the educators who work with your student typically does more harm than good.
In the example of an independent evaluation, providing the report to the District only gives them more information about how your child learns, which they should use to appropriately program for the student. Hopefully, the District will use the evaluation to help provide appropriate supports and services; but even if they do not, the family can at least say they provided all available information to the District. If parents have to go to a hearing, and they withheld a private evaluation, a hearing officer may hold that against the parent, and may question why the parent withheld outside information about the child that could have helped the District understand and program for the child.
Additionally, the private evaluation might contain information that would trigger the District’s Child Find obligation – that is, by putting the District on notice that the child has certain needs/diagnoses, and might require special education support. If the District never saw the outside evaluation, it may be harder to prove that the District knew of the child’s disabilities.
Similarly, Districts often request permission to speak to outside providers, such as private speech/language or occupational therapists, treating psychologists, or pediatricians. This information could help the District program for your child, and withholding it can make a parent appear uncooperative in front of a hearing officer.
In general, the instinct to hold back can be a very natural and protective one, but ultimately, parents should ask themselves, “What am I afraid will happen if I share this information?” and “What good could potentially come from sharing?” In the vast majority of cases, the potential good will outweigh the potential harm.
By Caitlin McAndrews, Esq., McAndrews Law Offices, P.C.
Thank you to the baffled soul who sent this to me. Usually when I look up special education law for Delaware, I just go straight to Title 14. I never look at the DOE website. Silly me for assuming it would be the same as Delaware law….
An Independent Educational Evaluation is used when a parent may not agree with the school’s evaluation for a potential IEP request. The parent has the right to ask for an independent evaluation at public expense. Let me repeat those words again… at public expense.
(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 must 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.
(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. 300.103.
(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, subject to the conditions in paragraphs (b)(2) through (4) of this section.
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either–
(i) File a due process complaint to request a hearing 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 pursuant to Sec. Sec. 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.
(3) If the public agency files a due process complaint notice to request 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 public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.
(5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.
(c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained 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 by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.
(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.
2.1 General: The parents of a child with a disability have the right to obtain an independent educational evaluation
of the child subject to 2.4 through 2.9.
2.2 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 2.9.
2.3 Definitions for the purposes of this subpart:
“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.
“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 14 DE Admin. Code 923.3.0.
2.4 Parent right to evaluation at public expense; 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, subject to the
conditions in 2.4.1 through 2.5.
2.4.1 If a parent requests an independent educational evaluation at public expense, the public agency shall,
without unnecessary delay, either:
2.4.1.1 File a due process complaint to request a hearing to show that its evaluation is appropriate; or
2.4.1.2 Ensure that an independent educational evaluation is provided at public expense, unless the
agency demonstrates in a hearing pursuant to 14 DE Admin. Code 926.7.0 through 926.13.0 that
the evaluation obtained by the parent did not meet agency criteria.
2.4.2 If the public agency files a due process complaint notice to request 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.
2.5 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 public agency may not require the parent to
provide an explanation and may not unreasonably delay either providing the independent educational
evaluation at public expense or filing a due process complaint to request a due process hearing to defend the
public evaluation.
2.6 A parent is entitled to only one (1) independent educational evaluation at public expense each time the public
agency conducts an evaluation with which the parent disagrees.
2.7 Parent initiated evaluations: If the parent obtains an independent educational evaluation at public expense or
shares with the public agency an evaluation obtained at private expense, the results of the evaluation shall 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 may be presented by any party as evidence at a hearing on a due process complaint
under 14 DE Admin. Code 926 regarding that child.
2.8 Requests for evaluations by hearing officers. If a hearing panel or a single hearing officer appointed for
expedited appeals under 32.0 requests an independent educational evaluation as part of a hearing on a due
process complaint, the cost of the evaluation shall be at public expense.
2.9 Agency criteria: 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, shall 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.
2.10 Except for the criteria described in 2.9, 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) and (d)(2)(A); 14 Del.C. §3110)
So the Delaware state law on this is very similar to the federal IDEA law. Not a heck of a lot of difference. But look at this information found on the Delaware DOE website:
Independent Educational Evaluations (IEE)
Parents and guardians have the right to request an Independent Educational Evaluation (IEE) for their student’s IEP team to review. An independent evaluation is appropriate if an IEE is likely to offer recommendations for a student that are different from his or her current IEP. Districts are not required to pay for an IEE and most-often this cost is paid for by the parent or guardian.
IEE requests must be made in writing to a district or charter school. Each district has their own process for honoring or denying this request.
I thought this was a joke when my friend sent it to me. But no, this is real. Now imagine a Delaware educator, without a lot of time in their day, looking to find quick information when a parent asked for an independent evaluation. Instead of rifling through Title 14, which can be a chore in itself unless you know exactly what you’re looking for, they decide to check out the DOE website. And they find this, and go by it. They contact the student’s parent, or wait for an IEP meeting, and tell them “Hey, you can get an independent evaluation, but you have to pay for it.” That school is now in violation of Federal IDEA law and Delaware law. I will be going through their website (cause it doesn’t look like they do) and find out if there is more of this foolishness. And in case they change the page tomorrow based on this find:
I am beginning to understand why special education is considered to be horrible in Delaware. If this is the guidance our Department of Education gives our schools and districts… But yet if schools don’t adhere to their standards, they are labeled and shamed. I have to wonder when this Department is ever going to learn. Do they care? I have to wonder. As long as they continue to treat special education as something less than what it is and deny parents one of the cornerstones of state and federal law, these children will suffer. And they do.
I urge all Delaware educators, in every single traditional school district, to NOT look at the DOE website at all for special education law. Go to Google, and take the time to learn Title 14. Many new laws are now enacted stemming from the IEP Task Force. As well, Google IDEA and know that like the back of your hand!
The Delaware Department of Education is the one giving training to school districts? They want all our students to have “standards-based” IEPs when they have no clue about some of the fundamental parts of IDEA law?
The Season Of Myths 