During Ennis Britton’s October 2017 Special Education Symposium, participants around the state were given the opportunity to submit questions on note cards. Because of time constraints and the large response, our Special Education Team was not able to address all of these questions during the presentations. In the coming months we will address some of these questions through blog posts and a new feature called “Special Education Spotlight” in the School Law Review newsletter.
One participant asked how to respond to a parent who asks for her child to be evaluated under the Individuals with Disabilities Education Act (IDEA) when the district does not suspect a disability but the parent has a private evaluation that concludes the student has a disability.
This scenario brings at least two parts of IDEA into play. The first is the issue of child find. A district has an obligation to “find,” or identify, all children within its territory that are potentially eligible under IDEA or Section 504. This is an affirmative obligation, meaning that each district must take active steps to identify such children – it is not enough to wait for parents to ask for an evaluation. That said, a parent certainly has a right to ask for an evaluation. In such a case, the district should respond in writing to the request using a Prior Written Notice form (PR01), either agreeing to proceed with an evaluation or refusing to do so.
A district should be cautious about refusing to evaluate a child when, as is the case in this scenario, an outside evaluator has identified the child as having a disability. Even when a school has not observed anything to suggest that a child has a disability, it is possible that he or she does. For example, a child might have ADHD but not exhibit characteristics at school due to effective medication. Such a child may still be eligible under Section 504 because the law requires districts to factor out mitigating measures such as medication in making eligibility determinations.
Second, assuming the district in this scenario proposes to evaluate the child, the parent consents, and the evaluation is completed, the IEP team may need to consider the private evaluation shared by the parent as part of the evaluation process. This is required whenever a parent acquires an independent educational evaluation (IEE) that meets a district’s reasonable criteria (credentials of the evaluator, validity of the evaluations, etc.). The good news is that in this scenario, absent an order from a court or hearing officer, the district is not required to pay for the IEE because the parent did not disagree with a district evaluation at the time the IEE was acquired.
Even when an IEE meets a district’s reasonable criteria, the law does not require absolute deference by the IEP team to the opinions of an outside expert. In fact, the law gives the IEP team the ultimate discretion as to how much weight to give to the IEE. The specific regulatory language requires the IEP team to “consider” the IEE. This means that the team reviews the information, holds it up against other information the team has about the child, and engages in meaningful discussion of the information. It does not mean that the team adopts all findings or directions of an outside evaluator because he or she is an “expert” or holds some sort of advanced degree. Remember, while outside opinions can be helpful, in most circumstances the outside evaluator will have spent at most a few hours with the child in a clinical setting. The IEP team will typically have weeks, if not months or years, of experiences with the child in an authentic setting. School personnel should neither be intimidated nor diminish their own expertise when presented with an IEE.
In the end, if a parent has sought an outside evaluation before asking the school to conduct an evaluation, and the school does not suspect a disability, this may be a sign of further disputes to follow. An early conversation with a member of Ennis Britton’s Special Education Team may be beneficial as you respond to scenarios such as this.