Dated June 7, 2000

Jennifer L. Scheinz

Attorney & Counselor at Law

7 W. Sixth Ave., Suite 4Q

Power Block, Level Four

Helena, Montana 59601

Dear Ms. Scheinz:

This is in response to your letter to Patricia J. Guard, former Acting
Director of the\
Office of Special Education Programs (OSEP), in which you were seeking a
policy clarification regarding a parent's right to request an
independent educational evaluation\
of their child under Part B of the Individuals with Disabilities
Education Act (Part B). Please excuse the delay in issuing this
response. Your specific question is as follows:

> When an IEP team determines that it needs a specific type of
> evaluation (which is not a full comprehensive evaluation of either the
> child's\
> eligibility or of all the child's educational needs) to develop an
> appropriate IEP, and the parent disagrees with the district's
> evaluation, does the parent have the procedural right under 34 CFR
> §300.502 to an independent educational evaluation of the same specific
> type as the evaluation conducted by the school?

Your letter also states that "\[t\]he functional behavioral assessment
is neither the initial evaluation for eligibility or the comprehensive
three year evaluation, nor is it in response to any disciplinary action
by the school." The purpose of your query is to ascertain our views on
whether the parent is entitled to an independent educational evaluation
at public expense.

Your inquiry concerns a situation in which a parent disagrees with a
functional\
behavioral assessment of their child that was conducted by the school
district because the child's individualized education program (IEP) team
determined that such an assessment was necessary to develop an
appropriate IEP for the child. Under 34 CFR §300.502 of the Part B
regulations, a parent of a child with a disability is entitled to an
independent educational evaluation (IEE) at public expense if the parent
disagrees with an evaluation obtained by the public agency. 34 CFR
§300.502(b)(1). Evaluation is defined at 34 CFR §300.500(b)(2) as
"procedures used in accordance with §§300.530-300.536 to determine
whether a child has a disability and the nature and extent of the
special education and related services that the child needs." We believe
that the functional behavioral assessment described in your inquiry,
while not part of the initial evaluation or part of the required
triennial evaluation, was a reevaluation under Part B. Therefore, if the
parents disagree with the evaluation, we believe that they are entitled
to an IEE.

An initial evaluation of the child is the first completed assessment of
a child to determine\
if he or she has a disability under IDEA, and the nature and extent of
special education\
and related services provided. 34 CFR §§300.531 and 300.500(b)(2). Once
a child has been fully evaluated the first time in a State, a decision
has been rendered that a child is eligible under IDEA, and the required
services have been determined, any subsequent evaluation of a child
would constitute a reevaluation. See the Analysis of Comments and
Changes published as Attachment 1 to the March 12, 1999 final
regulations at 64 Fed. Reg. at 12606.

Under 34 CFR §300.536, each public agency must ensure that the IEP of
each child with\
a disability is reviewed and a reevaluation is conducted if conditions
warrant a reevaluation, or if the child's parent or teacher requests a
reevaluation, but at least once every three years. Under 34 CFR
§300.533(a), as part of any reevaluation, a group that includes the
individuals described in §300.344 (the IEP team), and other qualified
professionals, as appropriate, must review existing evaluation data on
the child. On the basis of that review, and input from the child's
parents, the group must identify what additional data, if any, are
needed to determine, among other things, whether any\
additions or modifications to the special education and related services
are needed to enable the child to meet the measurable annual goals set
out in the IEP of the child and to participate, as appropriate, in the
general curriculum. In this instance, it appears that the IEP team
determined that additional data was necessary and based on that
determination, the functional behavioral assessment was conducted.

The IDEA Amendments of 1997 make provisions for public agencies to be
proactive in addressing the needs of children whose disabilities have
behavioral components. In the case of a child whose behavior impedes his
or her learning or that of others, IDEA '97 requires that the IEP team
consider, if appropriate, positive behavioral interventions, strategies,
and supports to address that behavior. 34 CFR §300.346(a)(2)(i). In the
situation you pose, it appears that the assessment, which was conducted
for the purpose of developing an appropriate IEP for the child, meets
the definition of the term "evaluation" at 34 CFR §300.500(b)(2), and
that the parent is entitled to an IEE under 34 CFR §300.502(b)(1).

Once an IEE is requested, the public agency must, without unnecessary
delay, either, (i) initiate a due process hearing to show that its
evaluation is appropriate; or (ii) ensure that the IEE is
publicly-funded, unless the agency demonstrates in a hearing that "the
evaluation obtained by the parent did not meet agency criteria." 34 CFR
§300.502(b)(2). A publicly-funded IEE must meet the criteria that the
agency uses when it initiates an evaluation, including the location of
the evaluation and the qualifications of the examiner, to the extent
those criteria are consistent with a parent's right to an IEE. 34 CFR
§300.502(e)(1).

We hope that you find this explanation helpful. If we can be of further
assistance, please contact Dr. JoLeta Reynolds of OSEP at (202)
205-5507.

> Sincerely
>
> Kenneth R. Warlick
>
> Director
>
> Office of Special Education Programs

cc: Robert Runkel

State Director

Montana Department of Public Instruction