Last updated on November 26, 2023
It sometimes seems that schools want to make it impossible to obtain supports for our students. Every child has a legal right to a Free Appropriate Public Education (FAPE); sometimes, an assessment determines which supports ensure an appropriate education.
Unfortunately, school district evaluations can be superficial and incomplete. There is a possibility that you might need an independent evaluation of the child to obtain appropriate supports. These third-party evaluations are included in the Individuals with Disabilities Education Act (IDEA).
Any student requiring special education supports, either an Individualized Education Program (IEP) or a 504 Plan, is legally entitled to an annual review of the support needs. Students with IEPs should receive a formal assessment of support needs at least every three years.
School districts often insist on performing their evaluation unless you submit an overwhelming history of official diagnoses. Since autism, ADHD, and other forms of neurodiversity are frequently diagnosed before a child turns five years old, many families are able to submit significant documentation for an IEP.
Also, in this post-pandemic era, many school districts lack the time and personnel to evaluate all the students potentially eligible for supports. This has, ironically, led more schools to accept independent evaluations in lieu of district assessments. During the pandemic, schools were also more likely to accept outside evaluations.
Also, don’t forget that once your child qualifies for supports, that qualification transfers from one school to another.
Lacking the ability to perform timely assessments, school districts have shown willingness to refer students to independent experts. Public schools only need to cover the costs for one evaluation, and they get to provide a list of approved experts.
Some schools do everything and anything to avoid supporting students. Don’t give up if a school district won’t evaluate your student or performs a questionable evaluation. Within the Individuals with Disabilities Education Act (IDEA) is Part B, Subpart E, Section 300.502. You have the right to submit an independent evaluation in many situations. Schools might resist this, and they rarely tell parents or guardians about this legal right, but sometimes you have to be assertive to obtain educational supports.
Independent evaluations are considered during the IEP process when:
- Performing an assessment within the school cannot be completed in a timely manner;
- Preexisting independent assessments exist, performed by qualified experts; or
- Hearing officers request an assessment after a due process complaint.
Due-process hearings take time and energy. Often, when a parent or guardian files a due process complaint challenging an IEP or an IEP denial, the school will agree to pay for an independent assessment. Districts with a history of special education complaints might want to avoid conflicts and promptly agree to independent assessments.
The applicable text from the IDEA code follows. IDEA is clear: parents have the right to obtain an independent evaluation.
§ 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 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.
(3) For the purposes of this subpart—
(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 §300.103.
In a handful of situations, families can compel the public school system to cover the expense of a third-party evaluation. When you disagree with the school district’s assessment, there is an appeal process known as a “due process complaint.” Most parents I’ve met who have disagreed with a school’s assessment did receive a third-party evaluation at the school district’s expense.
(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, 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 §§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.
Susan and I opted to move ahead with evaluations because we were addressing concerns beyond educational performance. Our daughters had several diagnoses before starting school. They also had diagnoses before relocating to Texas. Untangling possible causes of disruptive and potentially dangerous behaviors required neuropsychological assessments.
(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.
The hearing officers overseeing due process hearings can, and often do, request independent evaluations.
(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.
IDEA requires that schools consider the evaluations families obtain as long as qualified experts administer those assessments. Your experts must be at least as qualified as those the school district employs.
(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) and (d)(2)(A)
Knowing our rights empowers us as parents. Too often, the public education system views our children, and us, as burdens. Don’t let any school tell you that their evaluation of your student is the final opinion. You do have options.