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What You Should Know about
Evaluations: Parts 1 - 4
by Robert K. Crabtree
This article was first
published at and can currently be found (along with many others)
at
http://familyeducation.com/article/0,1120,23-634-0-1,00.html.
This particular article is also located on the
Wrightslaw website; we
encourage you to check them out also.
Part 1: Know your rights
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.
Part 2: Due process
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))
Part 3: Seeking an independent evaluator
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.
Part 4: Working with your evaluator
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.
Biography: Robert K. Crabtree
Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong,
LLP, a general practice law firm in Boston, Massachusetts.
Among other areas of practice, Mr. Crabtree concentrates in
special education and disability law. He has represented
hundreds of families in their efforts to obtain appropriate
special education and related services, has trained many
non-lawyer advocates to help families work with school systems,
and has written and lectured frequently on issues in special
education and disability law.
Mr. Crabtree and his partner, Lawrence Kotin, were principal
draftsmen of "Chapter 766," the Massachusetts special education
statute that was a progenitor of the federal special education
law now known as the IDEA. Another partner, Richard Howard, who
also concentrates in special education and disability law, was
formerly the Director of the Disability Law Center in Boston, a
national legal backup center handling precedent-setting cases
concerned with persons with disabilities.
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