Dated December 21, 2007

Nancy J. LoDolce

Attorney At Law

1400 North Dutton Avenue Ste 21

Santa Rosa, CA 95401

Dear Ms. LoDolce:

This letter is in response to your letter dated September 28, 2007, in
which you ask the following questions:

Does a school district have the right to dictate policies to independent
educational evaluators that restrict the use of age and grade level
scores in their reports?

Does a school district have the right to preclude independent evaluators
from making recommendations pertaining to specific methodologies and/or
use of materials?

Under 34 CFR §300.502(e), if an independent educational evaluation is at
public expense, the criteria under which the evaluation is obtained,
including the location of the evaluation and the qualifications of the
examiner, must be the same as the criteria that the public agency uses
when it initiates an evaluation, to the extent those criteria are
consistent with the parent\'s right to an independent educational
evaluation. Except for the criteria identified immediately above, a
public agency may not impose conditions or timelines related to
obtaining an independent educational evaluation. Under 34 CFR §300.20,
\"include\" means that the items named arc not all of the possible items
that are covered, whether like or unlike the ones named. Therefore, the
examples of agency criteria included at 34 CFR §300.502(e) (location of
the evaluation and the qualifications of the examiner) are not
necessarily the only criteria that must be the same as the public
agency\'s criteria.

While a public agency may establish criteria it uses when it initiates
an evaluation, those criteria must be consistent with the evaluation
procedures in 34 CFR §§300.304 through 300.311. The purpose of an
evaluation is to determine whether the child is a child with a
disability and the nature and extent of special education and related
services that the child needs. See 34 CFR §300.15. Evaluation procedures
at 34 CFR §300.304(b)(1) require that in conducting an evaluation, the
public agency must use a variety of assessment tools and strategies to
gather relevant functional, developmental, and academic information
about the child that may assist in determining whether the child is a
child with a disability and the content of the child\'s individualized
education program (IEP), including information related to enabling the
child to be involved in and progress in the general education
curriculum. In some cases, depending on all individual child\'s needs,
it may be necessary for an evaluator to conduct an assessment
thatincludes age and grade level scores in order to gather relevant
information about the child that may assist in determining the content
of the child\'s IEP, including information related to enabling the child
to participate in the general education curriculum. In addition, the
regulations at 34 CFR §300.311(a) specify the content for the evaluation
report for children suspected of having a specific learning disability.
Under 34 CFR §300.311(a)(5), the report must include whether the child
does not achieve adequately for the child\'s age or to meet
State-approved grade level standards; and whether the child does not
make sufficient progress to meet age or State-approved grade level
standards or the child exhibits strengths and weaknesses in performance,
achievement, or both, relative to age, State-approved grade level
standards or intellectual development. Therefore, a public agency must
permit its own evaluators to use age and grade level scores in its
evaluation reports. Because a public agency cannot prohibit its own
evaluators from including age and wade level scores in evaluation
reports, it cannot prohibit independent evaluators from doing so.

The answer to your second question is dependent upon what a public
agency permits or precludes in its own evaluations. Evaluation
procedures at 34 CFR §§300.304 through 300.311 do not require that an
evaluator make recommendations pertaining to specific methodologies
and/or use of materials. Any decisions made regarding the content of the
IEP on the basis of an evaluation, including methodologies or use of
materials, would be made by the IEP Team, as a result of considering the
information presented, including the results of the evaluation and the
unique individual needs of the child. If a public agency precludes it
own evaluators from making recommendations, it may preclude an
independent evaluator from making a recommendation. The converse is also
true. If a public agency does not preclude its evaluators from making
recommendations, it may not preclude independent evaluators from making
recommendations. Under 34 CFR §300.502(c), the results of the evaluation
must be considered by the public agency, if the independent educational
evaluation meets agency criteria, in any decision made with respect to
the provision of a free appropriate public education (FAPE) to the
child.

Based on section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

I hope you find this information responsive to your questions. If you
have further questions, please do not hesitate to contact Dr. Deborah
Morrow, of my staff, at 202-245-7456.

Sincerely,

/s/

Patricia J. Guard

Acting Director

Office of Special Education Programs

cc: Mary Hudler