14 Del. Admin. Code § 926-2.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 926-2.0 - Independent Educational Evaluation

2.1 General: The parents of a child with a disability have the right to obtain an independent educational evaluation of the child subject to subsections 2.4 through 2.9.

2.2 Each public agency shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in subsection 2.9.

2.3 Definitions for the purposes of this subpart:

"Independent Educational Evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.

"Public Expense" means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with 14 DE Admin. Code 923, Section 3.0.

2.4 Parent right to evaluation at public expense; A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in subsections 2.4.1 through 2.5.

2.4.1 If a parent requests an independent educational evaluation at public expense, the public agency shall, without unnecessary delay, either:

2.4.1.1 File a due process complaint to request a hearing to show that its evaluation is appropriate; or

2.4.1.2 Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to Sections 7.0 through 13.0 of this regulation that the evaluation obtained by the parent did not meet agency criteria.

2.4.2 If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

2.5 If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

2.6 A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

2.7 Parent initiated evaluations: If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation shall be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and may be presented by any party as evidence at a hearing on a due process complaint under 14 DE Admin. Code 926 regarding that child.

2.8 Requests for evaluations by hearing officers. If a hearing panel or a single hearing officer appointed for expedited appeals under Section 32.0 requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation shall be at public expense.

2.9 Agency criteria: 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, shall 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.

2.10 Except for the criteria described in subsection 2.9, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A); 14 Del.C. § 3110)

14 Del. Admin. Code § 926-2.0

26 DE Reg. 847 (4/1/2023) (final)