By Gary H. Schall, Esq.
When a child qualifies for special education, a reevaluation must occur at least every three years. Sometimes schools will attempt to convince parents to waive this evaluation. Be careful before making this choice!
The rule requiring re-evaluation of special education students under the Individuals with Disability Education Act (IDEA) requires that a re-evaluation “[s]hall occur at least once every 3 years, unless the parent and the LEA (Local Education Agency) agree that evaluation is unnecessary.” (34 CFR §300.303). Schools will sometimes try to convince a parent that a re-evaluation is unnecessary because there are few questions about the child’s current special education eligibility. Sometimes, this is a legitimate recommendation, founded in a desire to spare the child from the drain of taking another test. If the child is making progress, the parent(s) feels there are no issues and there is reliable information from other sources to guide the Individual Education Plan (IEP) team, maybe waiving the evaluation is okay. But be aware and think this decision over carefully. The evaluation’s purpose is much more than continued special education eligibility. Waiving this evaluation will limit the information available to make smart decisions about what the child’s needs are and can also result in parents losing other important legal rights and safeguards.
Why you should think twice about waiving a 3-year evaluation. It is an excellent opportunity for the team to consider and review information that helps guide IEP decisions, tracks progress, provides baseline data which helps a team create appropriate educational goals and objectives. It is also an important source of information about educational gains and losses, and a source of information about what has been tried that worked and didn’t work. Most importantly, the triennial evaluation is an important safety check in our system of delivering special education services. Moreover, it triggers important rights of parents to obtain an independent educational evaluation of their child. Generally, a parent can only request an Independent Evaluation after they have disagreed with the school’s own evaluation. The Vermont rule for Independent Educational Evaluations which comes from IDEA follows:
2362.2.7 Independent Educational Evaluation (34 CFR §300.502)
An “independent educational evaluation” means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question.
(a) Upon completion of a LEA evaluation, a parent may request an independent educational evaluation at public expense if he or she disagrees with the evaluation obtained by the LEA. Except as provided in this rule, the LEA shall either pay the full cost of the requested evaluation, or ensure that the evaluation is otherwise provided at no cost to the parent.
This Independent Educational Evaluation is especially important if there are any issues with the school regarding the IEP and the information the school has used to make its decisions. In an ideal world, decisions about special education services would be based on the individual student’s needs. However, economics, scarcity of resources, and other concerns often play a role in school decisions. A school’s recommendation to evaluate can be influenced by budget constraints, policy decisions or just because the school does not want to highlight an expected lack of progress.
The U. S. Supreme Court in the case of Schaffer v. Weast 546 US 49 (2005), provides guidance on the importance of the Independent Education Evaluation,school districts have a “natural advantage” in information and expertise, but Congress addressed this when it obliged schools to safeguard procedural rights of parents and share information with them. See School Comm. of Burlington v. Department of Ed. Of Mass., 471 U.S. 359, 368 (1985). As noted above, parents have the right to review all records that the school possesses in relation to the child § 1415(b)(1). They also have the right to an “independent educational evaluation of the[ir] child.” ibid. The regulations clarify this entitlement by providing that a “parent has the right to an independent evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1)(2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government, without realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. (cited directly from Schaffer v. Weast 546 US 49 (2005)
Be careful before waiving the triennial evaluation. If you do disagree with the school’s educational evaluation, let the school know in a simple written letter. You are not required to, nor would it be fair to expect you to detail every reason why you disagree with the school’s evaluation. Ask if the school has a policy with regard to Independent Education Evaluations, but do not be surprised if the school does not have one. Get a copy of the policy, if there is one. Know that the policy cannot interfere with your right for an Independent Educational Evaluation under IDEA. Choose someone qualified and independent of the school. This means talking to them beforehand. You may consider asking parent support groups for names of good evaluators with experience in evaluating children similar to yours.
After the Independents Educational Evaluation is completed it must be considered by the school in formulating the IEP. A school’s willingness to do this tends to be important and relevant information to a due process hearing where you are trying to enforce education rights. To learn more about Independent Evaluations click here to read what happened when the North Hampton, NH school district failed to consider an Independent Evaluation.
Bio: Gary H. Schall is a lawyer who worked in special education in the public schools. He is the co-founder with Tyler St. Cyr of the New England Education Law Center, an advocacy group with a mission to help individuals understand and enforce their educational rights.