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Special Education Evaluations and the Law

by Robert K. Crabtree

Your school system, under IDEA and its state counterparts, is required to fully evaluate any child who may need special education services ""in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities."" (34 CFR Sec. 300.532)

Before the school does so, and before providing or changing special education services, it must notify you in writing. For the first evaluation and placement, schools must also obtain parental consent. IDEA's requirements for parental consent vary depending on whether the LEA is seeking an initial evaluation or a reevaluation and on whether the parents affirmatively respond to a request for consent, simply do not respond, or cannot be located.

IDEA (20 USC Ch 33 Sec 1414 (c)(3)) provides that an LEA must ""obtain informed parental consent . . . prior to conducting any re-evaluation of a child with a disability, except that such informed parent consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond.""

Thus, while an LEA may proceed to re-evaluate without parental consent, that is true only if it has first taken reasonable, documentable measures to obtain consent. This means the LEA must be able to show documents such as records of attempts to call the parents, correspondence to and from the parents, and/or records of visits to the parents' home or place(s) of employment. (Per 34 C.F.R. sec. 300.345(d)) If parents do respond, but affirmatively refuse to consent to the LEA's re-evaluation, the LEA would have to seek an order to override the parents' refusal to consent. (34 C.F.R. sec. 300.505(b))

For an initial evaluation, it appears that even with documentable reasonable efforts to obtain consent, if the parents do not respond, the LEA cannot go ahead with the evaluation without further steps. In that case, if the reason consent could not be obtained is that the parents cannot be identified or located, presumably the LEA could seek the appointment of an educational surrogate (see 20 U.S.C. sec. 1415(b)(2)), or seek an order from the due process agency (presumably, this would be a ""matter relating to the identification, evaluation, or educational placement of the child"" and thus within the agency's jurisdiction.) If parents respond but refuse to consent to the initial evaluation, the LEA can seek an order from the due process agency to permit the evaluation. (34 C.F.R. sec. 300.505(b))

Your never-ending role

As a parent, you must make sure that all areas of possible need are assessed as quickly as possible. While some parents would rather not allow their school system to evaluate their child, a refusal to cooperate at this stage of the process can backfire if you need to ask for more or for different services later. It may also affect your ability to have the school system pay for an independent evaluation.

After the evaluations, your child's team (includes parents, teacher, service providers, school and independent evaluator, chairperson, child -- if 14 or older -- and anyone else a parent wants to invite, such as outside evaluators or advocates) must meet to decide what, if any, special education services should be provided, and to write an Individual Education Plan (IEP). Your school is supposed to give you copies of its written assessments before that meeting. Ask for explanations of anything you don't understand in those reports before the team convenes.

If you have concerns about the evaluation results or the team's program recommendations, you can request independent evaluations at the school system's expense. You'll need to select a ""qualified"" professional, and -- although it is a good idea to let the system know you are obtaining such an evaluation -- you are not required to notify the school in advance.

In some states like Massachusetts, the law allows parents to obtain an independent evaluation even in an area the school system has not assessed, as long as it relates to an area of suspected need. There is a good argument that this is so under IDEA as well. (See 34 CFR s.503(e) and 34 CFR §330.532(f))

Selecting an independent evaluator is one of your most important decisions. Parents rarely succeed at due process hearings without the testimony of expert witnesses who are competent, experienced, and credible.

Here are a few rules of thumb to help you make that decision.

• If the school system disputes your right to have an independent evaluation at their expense, don't wait until that dispute is resolved before you schedule your evaluation. In the long run, the question of who pays for the evaluation is much less important than getting the evaluation done.
• Some school systems will give you a list of ""approved independent evaluators."" Your choice is not restricted to that list. Just be sure to choose an evaluator with the right license or other credentials.
• Ask organizations involved with your child's type of disability, your pediatrician, other parents, advocates, parent organizations, and special education lawyers to find out which experts are well respected in the particular area of disability. It is important to find evaluators who can demonstrate objectivity and expertise in your child's disability. Evaluators with a reputation for being ""hired guns"" or for always recommending the same program will not be as effective in supporting their recommendations either at a team meeting or in a hearing.
• Find out about an evaluator's willingness and availability to follow through on her recommendations. Will the expert observe your child's program? Attend a team meeting? Observe and evaluate alternative placements or services? Testify at a hearing (and cooperate with preparation for that hearing)? Often, the experts who work outside of hospital facilities are more available and willing to do these things.
• If you are referred to a hospital facility, check out the particular group of evaluators within that facility. There can be great differences in approach, quality, and follow-through from one division to another.
• An evaluator should be able not only to write a convincing report, but to ""sell"" the recommendations in that report. A good evaluator has ""people"" skills and can speak with school personnel without antagonizing them -- while sticking to her recommendations.
• The best evaluators are in great demand. Be prepared to wait -- for an appointment for testing, for a written report, and for anything else you may need.

Once you have an excellent evaluator (or team of evaluators), stick with them. The more an expert sees of your child, the more convincing her recommendations will be. (Remember that the school system's experts -- the classroom teachers and other service providers -- see your child every day, while the independent evaluator normally only sees her for the time it takes to test her.)

Don't ask an independent evaluator for legal advice. Unless she has studied the decisions issued by courts and hearing officers and the rules and regulations that govern special education process, she can't advise you reliably on your options and strategies.

Be skeptical -- even of an indepedent evaluator's findings and recommendations. You know your child best. Remember that an evaluator sees her for brief, though intense, periods of time and can only get a snapshot. Also remember that the evaluator's advice is only as good as the information available to her. For example, if she suggests that a particular program would be a good fit for your child, find out how well the evaluator really knows the program: Has she seen it recently? Does she know what the program's population and/or staffing and/or approach is like?

Remember that special education law requires a school system to provide a ""free appropriate public education"" which must be provided, to the maximum extent appropriate, in the ""least restrictive environment"" (LRE). The preference for the LRE applies even in Massachusetts -- where state law requires that an IEP provide ""maximum feasible benefit."" Some independent evaluators are quick to assume that no school system can provide the kind of program she is recommending. Despite the evaluator's opinion, in most cases you will have to seriously evaluate the services available within the school system before having a chance to win an outside placement at a hearing. Accordingly, you should work with the evaluator to assess how much can happen right in your child's school system.