Parents have no practical way to assert their legal right to an outside evaluation if they disagree with the school district's assessment.
Your school district has just evaluated your child and handed you its Evaluation Report or ER. Now what?
Basically, you have two choices. You can accept the district’s ER and use it to help develop a special educational program for your child, such as an IEP or 504 Plan. But what if you’re not sure the district’s ER is accurate or, even worse, if you’re pretty sure it’s wrong? This is when things get tricky.
You might have heard that federal special education laws give parents the right to a free “second opinion” of sorts — an evaluation paid for by the school district but performed by an independent expert, formally known as an Independent Educational Evaluation or IEE.
That’s true, but unfortunately, the same law that gives parents this right leaves most parents without any practical way of asserting it. Here’s why.
‘Fund or Fight’
Under the law, if parents exercise their “right” to request a district-funded IEE, the school district has only two ways to respond. It can either agree to pay for the IEE or it can file a Due Process Complaint against the parents to defend their ER!
We call this “fund or fight” and consider it a terrible flaw in special education law. The practical effect of fund or fight is that before they can ever effectively use their so-called “right” to a district-funded IEE, parents will probably have to hire an expert to demonstrate at a due process hearing that the district’s ER is insufficient.
In addition, because the due process hearing is a legal proceeding in which the district will be represented by its lawyer, parents will be at a significant disadvantage unless they also hire a lawyer. The bottom line is that it often costs more for parents to assert their “right” to a district-funded IEE than simply to pay for the IEE themselves!
What Should You Do?
Don’t make the mistake of asking for a district-funded IEE without fully considering whether you are prepared, both emotionally and financially, to fight your school district. If you have a special education attorney, ask what it could cost to fight the school district and how long the process might take. Also, identify and learn the cost of an appropriate independent evaluator. You can then decide whether to bear the cost yourself, and whether to seek reimbursement.
Finally, parents can work to change this unfair law. Contact your representatives. Let them know that a “right” that costs more than it’s worth is no right at all.
Dave Frankel and Josh Kershenbaum are special education attorneys in West Conshohocken, PA. MyKidsLawyer.com.