Earlier this month, the 3rd Circuit Court of Appeals, the federal court with oversight over New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands, ruled that parents of special education students must first object to a district-sponsored evaluation before seeking an independent evaluation of the student at public expense.
An independent educational evaluation (IEE) is an evaluation of a classified student by a neutral party, usually selected by the parent, and generally paid for by the school district. Because an IEE can be costly and the selected experts often offer opinions that run counter to district recommendations, they can become a point of contention between parties.
In M.S. v. Hillsborough Twp. Bd. of Educ., H.S., was a student classified as eligible for special education and related services in 2011. At the triennial evaluation three years later, both parents and the district’s child study team agreed that no additional information was necessary to determine the student’s continued eligibility for special education. While the district notified the parents of a right to seek additional evaluations within 15 days of the reevaluation meeting, the parents did not assert that right until nearly two and a half years later.
In June 2017, during the student’s next reevaluation planning meeting, both the district and parents agreed to a reevaluation plan that included specific assessments. The following day, in an email to the district, the parents advised the district that the student had recently been diagnosed with panic attacks and anxiety, and further advised that they felt the student’s academic performance could improve. In that same email, the parents requested an IEE. Subsequently, the parents revoked their consent to any district evaluation.
Because the parents no longer consented to a district evaluation, the district denied the parental request for an IEE, relying on N.J.A.C. 6A:14-2.5(c), which authorizes a parent to seek an independent educational evaluation if the parent disagrees with an assessment conducted by the district. The district’s denial explained that the parents were not eligible for an independent evaluation because the district had not conducted the required reevaluation; therefore, there was no evaluation with which the parents could disagree. As such, absent parental disagreement with a district evaluation, the district was not obligated to provide the IEE.
The parents, to the contrary, argued that a recent 3rd Circuit opinion, Warren G. v. Cumberland County School District, clarified that parents need not disagree with a public evaluation before seeking an IEE.
During the ensuing litigation, New Jersey’s Office of Administrative Law ordered the district to pay for the parents’ independent evaluation of H.S. On the district’s appeal of the initial decision, the District Court of New Jersey reversed the initial decision and denied parental reimbursement.
Upon the parents appeal of the District Court decision, the 3rd Circuit, in a decision in which the New Jersey School Boards Association (NJSBA) participated as amicus curiae, sided with the district and denied parental reimbursement. The 3rd Circuit reviewed both state and federal regulations and determined that federal guidance clearly indicated, “if a parent refuses to consent to a proposed public evaluation in the first place, then an IEE at public expense would not be available since there would be no public evaluation with which the parent can disagree.” The court also addressed the parents’ argument that Warren G. prohibited prior parental disapproval and noted that that decision merely clarified the timing of parental consent; it did not obviate the need for such consent. Accordingly, the court dismissed the complaint and denied reimbursement to the parents.
This decision, while highly procedural, stands for the proposition that a board of education may deny a parental request for an independent educational evaluation where the parent has not complied with the applicable procedural requirements required of that parent by special education regulations. Moreover, the decision reinforces the proposition that special education laws and regulations place burdens and obligations on both parties; each side must comply with their respective obligations to ensure a free and appropriate education to classified students. For more information on this decision, board members may seek to discuss this matter with their board attorney or may call the NJSBA Legal and Labor Relations Department at (609) 278-5254.