Third Circuit Clarifies Law on Independent Evaluation Requests & Need for Disagreement with District Eval
Occasionally, school district child study teams (“CSTs”) are faced with special education parents who are resistant to allowing the CST to evaluate their child, yet demand independent evaluations from an outside evaluator at the school district’s expense. In such circumstances, districts were often faced with a dilemma – either acquiesce to such demands, or file for due process themselves and incur legal fees to resist such requests, or deny the parent’s request without filing for due process and risk an Administrative Law Judge (“ALJ”) finding that the district committed a procedural violation. This is because previous decisions of the Office of Administrative Law have rendered conflicting opinions from ALJs on the proper interpretation of N.J.A.C. 6A:14-2.5(c) and the important issues of (1) whether a parent could request an independent educational evaluation (“IEE”) at any time, or only in response to a disagreement with an evaluation or reevaluation conducted by the District, and (2) whether it was necessary for the district to file for due process to resist an IEE request from a parent even when the parent had no disagreement with a district-conducted evaluation. In a recent decision issued on December 13, 2019, the Third Circuit has now clarified the law on this important issue. M.S. & S.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., No. 19-1510 (3d Cir. Dec. 13, 2019).
Under the Individuals with Disabilities Education Act (“IDEA”), school districts are required to evaluate special education students in all areas of suspected disability, both at the time the child study team (“CST”) initially considers whether the student is eligible for services and on an ongoing basis with triennial reevaluations every three years, or sooner if circumstances warrant, unless the parent and CST decide that such reevaluations are unnecessary and mutually agree to waive them. Federal regulations provide a mechanism for a parent to obtain an IEE from an evaluator not employed by the school, at the expense of the public, “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.” 34 C.F.R. 300.502(b). In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees. N.J.A.C. 6A:14-2.5(c). Parents are entitled to only one IEE each time the district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments.
In Hillsborough, the parents initially signed consent to a reevaluation plan to permit reevaluations of their son by the CST. Yet, before it could be conducted, the parents rescinded their consent to the district’s reevaluation, and instead they made a written request for an IEE at district expense. The Hillsborough CST denied the parents’ request, explaining that their entitlement to request an IEE at public expense hinged on their having a disagreement with an evaluation or reevaluation conducted by the district. The district further denied that it was obligated to file for due process within 20 days of the parents’ written request under N.J.A.C. 6A:14-2.5(c). The parents then filed for due process and sought reimbursement for the IEE, which they had obtained at their own expense.
The ALJ rendered an initial decision on the issue and ordered Hillsborough to reimburse the parents for the cost of the IEE. On January 31, 2019, the U.S. District Court for the District of New Jersey reversed the ALJ and issued a decision clarifying the circumstances under which parents can request independent educational evaluations (“IEEs”) from local school districts at the expense of the public and how a district is obligated to respond. See S.S. & M.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., 73 I.D.E.L.R. 210, 119 LRP 2568, No. 3:18-cv-2335 (D.N.J. January 31, 2019). The federal district court held that special education parents are not entitled to request an IEE at public expense when the District has not yet completed an evaluation or reevaluation of the student with which the parent disagrees, or where the parents refuse to allow the school district to evaluate the child. Further, the court held that, “when an IEE request is invalid, a school district is not required to file for due process within twenty days.”
On December 13, 2019, the Third Circuit affirmed, stating: “We agree that a disputed evaluation is a requirement for a publicly funded IEE.” The circuit court held: “Simply stated, only a disputed public evaluation can trigger a right for a publicly funded IEE.” Distinguishing prior case law, the court held that: “Neither our prior decision, nor, more importantly, the text of the statute, can be read to permit reimbursement without ever disagreeing with the prior evaluation.” The Third Circuit also affirmed that school districts need not needlessly expend legal fees by filing for due process, as N.J.A.C. 6A:14-2.5(c) only requires a school district to file for due process within 20 days of a written request for an IEE when the parent has a disagreement with a public evaluation conducted by the district.
The decision provides much needed guidance to school districts, parents, and ALJs on these important issues by clarifying that the federal and state regulations on IEEs should be interpreted as written to require a disagreement with a district’s evaluation before a parent may validly request an IEE at public expense. In doing so, the decision should help alleviate a long-standing loophole in the regulatory scheme, through which parents had previously been able to force school districts into the untenable position of having to either grant IEEs to parents who had no right to request them, expend fees by filing for due process to deny the IEE request, or risk an adverse result from an ALJ who might otherwise have simply determined that the parents were entitled to request IEEs at any time, even in cases where the district was never given the opportunity to evaluate the child.
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