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Wednesday, July 29, 2015

Bill’s View: Ensuring that Independent Education Evaluations are Credible and Persuasive

From Mass. Advocates for Children

By Bill Crane, Esq.
May 23, 2015

Bill Crane is Of Counsel to Mass. Advocates for Children. He works with other MAC attorneys on systemic special education issues, consults to attorneys representing low-income parents and students in special education disputes, and writes for the MAC blog.

Crane was a Hearing Officer at the Bureau of Special Education Appeals from 1999 to 2014.


This is the sixth of occasional postings on special education law and practice. [1] In this posting, I explore a few ideas that may help practitioners ensure that independent education evaluations are credible and persuasive.


The critical importance of evaluations is perhaps self-evident to those who practice in this area. [2] For the vast majority of special education disputes—such as, a disagreement regarding what special education or related services should be provided to a particular student—evaluations typically drive the discussion and become essential to a parent’s success, whether at an IEP Team meeting, the Bureau of Special Education Appeals (BSEA) dispute resolution processes, or federal or state court. [3]

An independent education evaluation (IEE) is an evaluation where “the parent selects the evaluator.” [4] Parents rely on IEEs to level the playing field and participate, to the extent possible, as equal members in the planning and implementation of educational services for their son or daughter.

But, an IEE is essentially useless to a parent if others will not rely upon it to determine the special education needs of the student and how those needs should be met. Hence the importance of parents considering whether they are doing as much as possible to ensure that their evaluator, and therefore his or her evaluation, is credible and persuasive.

Before considering this question, I provide an overview of the law regarding a parent’s right to an IEE.


The Massachusetts and federal special education requirements ensure that a parent has the right to obtain an independent education evaluation at private expense at any time. [5]

Privately funding an IEE gives the parent complete control of the process of choosing an evaluator and the scope of the evaluation, thereby significantly improving the likelihood that the evaluation will be useful to the parent.

But, for many parents, public funding of an IEE is essential. The remainder of this section will consider how parents may obtain school district funding of an IEE and what limitations this may place upon the IEE. [6]

An IEE at school district expense is intended to occur only after the school district has conducted its own evaluation with which a parent disagrees. [7] Once the parent communicates to the school district that he or she disagrees with the school district evaluation, the school district must then either pay for the cost of the IEE, or file a hearing request with the BSEA within five school working days. [8]

The BSEA Hearing Officer will require the school district to pay for the evaluation either if the Hearing Officer finds that school district has failed to file with the BSEA within the required five days, [9] or the Hearing Officer finds that the school district’s evaluation was not “comprehensive and appropriate”, [10] or the parent meets income eligibility criteria discussed immediately below.

Massachusetts requires a school district to pay for the entire evaluation if the student is eligible for free or reduced cost lunch or is in the custody of a state agency with an educational surrogate parent and, alternatively, requires a school district to pay for part of the cost of evaluation if the family income is greater than 400% of the federal poverty guidelines, but equal to or less than 600% of the federal poverty guidelines. [11]

The school district has an obligation to determine whether the parent has the right to a free evaluation and if not, to offer information about the above sliding fee scale. [12] In order to take advantage of the sliding fee scale, a parent must be willing to provide family financial information to the school district. A parent has the right to decline to provide family financial information to the school district; this would preclude the parent from taking advantage of the sliding fee scale but does not otherwise impact a parent’s rights regarding an IEE. See 603 CMR 28.04(5)(c).

These rights to have an IEE funded by the school district continue for 16 months from the date of the evaluation with which the parent disagrees. [13] The statutory and regulatory language is clear (and BSEA Hearing Officers have determined) that these standards give a student the right to public funding of an independent evaluation regardless of whether the school district’s own evaluation is “comprehensive and appropriate”. [14]

Another possibility is a BSEA order for school district funding of an evaluation. A BSEA Hearing Officer may do so “when necessary in order to determine the appropriate special education for the student.” [15] However, BSEA Hearing Officers have seldom used this authority.

One of the practical difficulties of a parent relying upon an IEE that is funded by the school district is that there is little guidance as to what the IEE must include. Massachusetts special education regulations provide that IEEs funded by a school district must be “equivalent to the types of assessments done by the school district.” [16]

In addition, federal special education regulations state:

(e) Agency criteria. (1) 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.

(2) Except for the criteria described [immediately above] in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. [17]

And, the United States Supreme Court, after reviewing the federal statutory and regulatory requirements regarding IEEs, has stated that the “IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [18]

This general language is useful but has not always resolved specific questions regarding what actually must be included within an IEE.

Another weakness of IEEs funded by school districts is that they are conducted at rates that were set by Massachusetts in 2004. [19] By statute, the Massachusetts Executive Office of Health and Human Services (EOHHS) has responsibility to set these rates. [20] EOHHS regulations do so, but EOHHS has been delegating the analytical work to the Center for Health Information and Analysis (CHIA), which also makes recommendations about which regulations to review and when to do so. [21]

The United States Department of Education has explained that rates for independent education evaluations must “allow parents to choose from among the qualified professionals in the area”. [22] However, the antiquated Massachusetts rates are so low (as compared to prevailing rates used by evaluators) that this federal standard is often violated. [23]

The Massachusetts regulatory scheme allows exceptions to be made to the state rates only in the unusual situation where a different IEE rate can be justified on the basis of the “unique” circumstances of a particular student. [24]

As a result, many low- and moderate-income parents who can only obtain an IEE if funded by a school district, are effectively denied their right to an IEE under state and federal special education laws. [25]

I now turn to the central question to be addressed in this posting: what can parents do in order to ensure that their independent education evaluation is credible and persuasive, and therefore useful for the purpose of determining a student’s special education needs and how those needs should be met?


The effectiveness and usefulness of an evaluation depends to a very large extent on whether the particular evaluator chosen by the parent is someone who appears to others as both credible and persuasive. It may be tempting for a parent to select an evaluator on the basis of the evaluator’s technical expertise and experience and because the evaluator will likely reach conclusions consistent with the parent’s educational objectives for the student.

But, if the evaluator does not also have sufficient credibility and persuasiveness so that an IEP Team or a BSEA Hearing Officer will rely upon the evaluation, the evaluation may have limited practical utility.

It is not difficult to understand the qualities of an evaluator that will give him or her credibility in the eyes of a BSEA Hearing Officer.

Put yourself in the shoes of a decision-maker—for example, imagine making a difficult/conflicted medical decision as to whether you are going to have invasive, high-risk, high potential gain surgery, or you are going to pursue a long-term plan of physical therapy with little risk but less potential gain, at least in the short term. Also imagine that there are persuasive arguments on both sides, and as the patient, you are the sole decision-maker.

You don’t have sufficient medical expertise yourself, so you look for an expert to help you decide. What would be the qualities of an expert whose opinion you would trust to guide you in making this decision?

You would likely want someone who not only has sufficient expertise and experience and who not only takes the time to understand your particular situation. You would also want someone who is willing and able to understand both sides of the dispute and who is open to thinking through with you, in an unbiased, logical and practical way, the pros and cons of each approach.

It would also be helpful if this person would be willing to talk to (and consider the opinions of) the surgeon and the physical therapist who would provide the two alternative treatments. If you could find such a trustworthy person, you would be happy to simply follow this person’s guidance.

So too with a BSEA Hearing Officer who is faced with very difficult decisions, where potentially persuasive arguments are being made for each position. As a Hearing Officer, I breathed a sigh of relief when I felt sufficiently comfortable with a particular expert so that I could allow myself to be guided by that person’s opinion. It always helped if the expert had an impressive depth of knowledge about the student, the student’s particular disability, and how it should be addressed.

But what often tipped the balance between one expert and another was whether I felt that the expert had a balanced perspective, perhaps having consulted both to school districts and to parents in previous cases, and because the expert was able to think through the intricacies of the particular student in an intellectually honest way after considering the arguments for both sides.


Editor's Note: NESCA clinicians routinely observe children in their current classrooms and proposed placements, participate in TEAM meetings and testify as experts in mediations or at BSEA hearings as necessary. These services are generally unavailable from hospital-based and other institutional practices.

In most disputes, a critical component of establishing the credibility and persuasiveness of parent’s evaluation is for the evaluator to have observed all relevant programs.

The expert will likely need to observe the student in his or her current program so that the expert can see firsthand how the student is functioning and learning in school—essentially, what the educators are observing on a daily basis. The expert will also likely need to observe the school district’s proposed program (which may be different than student’s current program) to have an opinion as to whether this program is appropriate for student. Often a key question to be considered by the Hearing Officer is whether the school district’s proposed program, if inappropriate, can be made appropriate with certain modifications or other adjustments.

Finally, the expert may need to observe the program proposed by parents. It is critical that parent’s expert have sufficient time and opportunity to observe these programs so that the expert will be able to reach opinions that are credible and persuasive to the IEP Team and, if need be, to a BSEA Hearing Officer.

Without the benefit of these observations, the expert may be forced to form opinions exclusively on the basis of formal testing (often within the expert’s offices), interviews and record review, thereby leaving the expert open to criticism that he or she has no understanding of how the student actually learns in school and that he or she has limited ability to determine whether a particular program could actually be appropriate for student or could be made appropriate.

Massachusetts has comprehensive standards providing parents with the right to have experts observe student’s “current program and … any program proposed for the [student].” [26] A school district is to provide a parent and parent’s expert with an opportunity to evaluate fully the student’s educational program, including student’s performance in that program. [27]

An observation may include evaluation of both academic and nonacademic aspects of the student’s educational program, [28] and a school district may not impose arbitrary limitations—for example, limiting the observation to certain, specific classes or activities—that would preclude a full evaluation. [29]

The complexity of the student’s needs, as well as the programs to be observed determine the scope of the observation. [30] The end result must be that the observation will be sufficient for the purpose of the parent’s being able to participate fully and effectively with school personnel in determining the student’s appropriate educational program. [31]

It is generally the expert, not the school district, who is best suited to know the nature and length of the observation that are needed in order for the expert to be able to accomplish these objectives. [32]

The Massachusetts statute explicitly requires the school district to schedule the observation so as to provide “timely access” to the parent and parent’s expert. [33] At the same time, the expectation is that the parent and school district will plan together the logistical aspects of the observation over a reasonable period of time. [34]

The school district has limited ability to restrict the nature and scope of a parent expert’s observation. As a general rule, a school district may impose limitations on a parent’s expert’s otherwise appropriate observation in only the following three respects: (1) to ensure the safety of students in the program, (2) to ensure the integrity of the program while under observation, and (3) to protect the students in the program from disclosure of confidential and personally identifiable information. [35]


Perhaps the most significant potential hurdle in establishing the credibility and persuasiveness of a parent’s expert is that the expert does not know the student as well as those who teach or provide therapy to the student on a daily basis.

Because of this disparity, the opinions of parent’s expert may possibly be discounted if they are inconsistent with the opinions of student’s teachers and therapists. This is particularly likely to occur if parent’s expert has not observed student at school, spoken to those implementing student’s IEP and reviewed student’s school work.

A special education decision by the First Circuit in 2012 illustrates this point, as follows:

"The hearing officer gave little weight to this testimony [of parent’s two experts]. Instead, she credited the testimony of educators who had worked directly with Sebastian at BICO and observed his daily progress there over a number of years….

The testimony offered by [parent’s two experts] was controverted by [student’s] educators, who interacted with him regularly. The administrative record makes clear that [parent’s experts] spent relatively little time with [student]. Moreover, [one of parent’s experts] never consulted [student’s] teachers or reviewed his schoolwork. [The other parent expert] never formally evaluated [student] or observed him at BICO.

Given this record, it was entirely proper for the district court to give due deference to the hearing officer’s weighing of the testimony offered by [parent’s experts]. There was nothing clearly erroneous in that determination." [36]

The following cross-examination of a parent’s expert witness similarly illustrates the importance of the expert’s talking to the student’s teacher for purposes of evaluating the student’s progress within the school district’s program (and this reflects the kind of questions and answers I typically observed as a Hearing Officer when parent’s expert had not talked to the student’s teachers):

Q: So would you be surprised to learn that [student] had made progress in her educational program at school?

A: No. Most children make some progress.

Q: And you didn’t talk to the teachers about her progress, did you?

A: No, I did not.

Q: So you really can’t comment upon whether or not she made progress at school, can you?

A: Only by the reports that I looked at.

Q: And the reports don’t really comment about progress, do they?

A: No. [37]

A 2008 BSEA ruling included an affidavit from parent’s expert, explaining the importance of speaking with student’s teachers:

"I cannot complete a thorough and proper evaluation unless I am allowed to speak with the personnel who implement [student’s] educational plan. As part of an evaluation, I need to ask questions of pertinent staff to clarify and get their impressions regarding [student’s] development over the course of years, understand how [student’s] IEPs have been formulated, and understand the nature of how he has progressed.…

To not be able to speak with relevant educational staff would be a substantial omission in regard to my professional practice, and I would be limited in my ability to assess student programming and make recommendations." [38]

In this 2008 BSEA ruling, the Hearing Officer found “that the integrity and usefulness of [parent expert’s] evaluation would be compromised and the essential purposes of his independent education evaluation would be undercut if Northbridge were allowed to preclude his access to Northbridge staff who are implementing Student’s education plan, such as Student’s special education teacher.” [39]

Other BSEA decisions and rulings have noted the weakness in the parents’ case or discounted parent’s evaluation or expert testimony because the evaluator did not speak with the teachers. [40] Several other BSEA decisions have noted that an expert had sufficient understanding of the student, in part, because the expert had spoken with student’s teacher and others involved in the student’s education. [41]

For these reasons, it is imperative that in most disputes, parent’s expert make every effort to have a meaningful discussion with those who are implementing student’s IEP, and that the expert review student’s schoolwork. As with a school observation, not only can the expert learn important information about the student and his/her current educational services, including the progress that he or she is making, but can also gain credibility by demonstrating that the expert understands and has taken into account the perspective of student’s teachers (and others) who work closely with student on a daily basis.

An added potential benefit is the possibility of resolving the dispute by parent’s expert and the school district’s experts (including teachers and other professional staff working with student) finding common ground during these discussions. Likely, if parent’s expert and the school district’s experts can agree, the parties will reach agreement.

In contrast to the area of an expert’s observation of a student’s program as discussed above, there is no statute, regulation or advisory that explicitly addresses an expert’s speaking with school staff. But, for a number of reasons, it seems clear (at least to me) that parents have a right to this, and that the BSEA would enforce it.

First, to my knowledge, there is only one BSEA ruling/decision addressing the right to have parent’s expert speak with school staff. The one BSEA ruling addressed this issue in some depth and concluded that parent had the right to have her expert speak with all staff who were implementing the student’s IEP. [42]

Second, there are many instances of BSEA hearing officers noting the importance of an expert’s speaking with school staff or discounting the testimony of experts who failed to do so. See, for example, the decisions cited in footnotes 40 and 41. Similarly, when I was a BSEA hearing officer, school attorneys routinely sought to discount any parent expert who had not spoken with school staff.

In light of this, it would seem unlikely that a BSEA hearing officer would conclude that a parent’s expert should not be allowed to speak with school staff.

Third, school districts have no legitimate interests in precluding access to their staff, other than issues such as timing and scheduling (similar to the school’s interests relative to observations, discussed above). Fourth, the United States Supreme Court has made clear its intent that parent’s “expert [have] the firepower to match the opposition” [43] (discussed in greater detail above) which can only occur if the expert is given access to school staff and allowed to review student’s schoolwork. [44]

Parents and their experts may run into practical scheduling issues because some school districts may not be used to providing this access and because some experts may not be used to allotting time for it. Parents and their advocates should be talking to their experts about this early in the process, and parents and their advocates and their experts should allow as much time as possible to work through any scheduling issues or other concerns with the school district.

The expert should determine when and how to communicate with school staff — for example, in person while the expert is already at the school for an observation, by telephone before or after the observation, during a separate meeting at a time that is convenient for the expert and school staff, or in some other way.

Ultimately, it is a matter of school staff assigning sufficient importance to these communications so that parent’s expert will have a meaningful opportunity to understand the perspective of those who are working directly with the student.

The end result should allow parent’s expert to have sufficient access to school staff so that the expert fully understands the school staff’s perspective regarding student’s special education needs, how these needs are currently being met and how they should be met in the future.


State and federal special education laws provide a way for parents to participate in educational decision-making by obtaining an independent education evaluation or IEE. Yet, the usefulness of the IEE will depend, to a very large extent, on whether parent’s evaluation has sufficient credibility and persuasiveness with the IEP Team and the BSEA Hearing Officer. This requires that parents choose an evaluator who is a credible expert.

It also requires arranging for the expert to observe student’s programs, meet with school staff who are implementing student’s IEP, and review student’s schoolwork.


[1] In my first posting (September 2014), I reviewed the United States Supreme Court’s decisions pertaining to special education. In the second posting (October 2014), I gave an overview of First Circuit special education decisions. In the third posting (December 2014), I discussed the “retrospective testimony” rule. (Retrospective testimony refers to testimony, in a BSEA proceeding or court appeal, that certain educational services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement.)

In the fourth posting (February 2015), I discussed a recent decision by the First Circuit that discussed settlement agreements used to resolve special education disputes. In the fifth posting (March 2015), I reviewed a recently-revised Department of Elementary and Secondary Education (DESE) Advisory on the use of paraprofessionals for individual students with disabilities.

[2] In the words of the First Circuit Court of Appeals in a recent decision (South Kingstown School Committee v. Joanna S., 773 F.3d 344, 346-47 (1st Cir. 2014)):

"Evaluations are integral to the way IDEA works… They assist in determining … [t]he content of the child’s Individualized Education Program, or IEP. The IEP sets forth the services a disabled child will receive and the educational goals for that child. The IEP thus gives practical substance to IDEA’s right to a free appropriate public education. And for that reason, evaluations are a key means—perhaps the key means—for deciding the content of the protections IDEA offers."

[3] Mental Health Legal Advisors Committee has prepared a useful “flier” regarding special education evaluations under state and federal special education laws. It may be found at: http://www.mhlac.org/Docs/ed_sped_evaluation.pdf

[4] South Kingstown School Committee v. Joanna S., 773 F.3d 344, 347 (1st Cir. 2014).

[5] See 34 CFR 300.502(b)(3) (parent … has the right to an independent educational evaluation); MGL c. 71B, s. 3 (“A parent may obtain an independent evaluation at private expense from any specialist”); 603 CMR 28.04 (5)(b) (“The parent may obtain an independent education evaluation at private expense at any time”).

[6] Both state and federal special education laws address the issue of public funding of IEEs. But, a parent’s rights to an IEE under the federal regulations (34 CFR 300.502(3)) are generally less protective than those rights under Massachusetts special education statute and regulations, and therefore the latter will be the focus here.

[7] See South Kingstown School Committee v. Joanna S., 773 F.3d 344, 347 (1st Cir. 2014); 34 CFR 300.502(b)(1); 603 CMR 28.04(5).

[8] See MGL c. 71Bs, s. 3; 603 CMR 28.04(5)(d). See also 34 CFR 300.502(b)(2).

[9] See, e.g., In Re: Newton Public Schools, BSEA # 1300077 (February 6, 2013); In Re: Hampden-Wilbraham RSD, BSEA # 02-1842, 8 MSER 144 (May 24, 2002).

[10] See 603 CMR 28.04(5)(d). See also 34 CFR 300.502(2).

[11] See MGL c. 71B, s. 3; 603 CMR 28.04(5)(c).

[12] See 603 CMR 28.04(5)(c).

[13] See 603 CMR 28.04(5)(c)6.

[14] See MGL c. 71B, s. 3; 603 CMR 28.04(5)(c); In Re: Lanesborough Public Schools, BSEA # 12-7024, 112 LRP 28285 (May 25, 2012); In re: Carol (Attleboro Public Schools), BSEA# 09-3926, 110 LRP 38989 (May 19, 2009); In Re: Lowell, BSEA # 08-4003 (February 25, 2008); In Re: Foxborough Regional Charter School, BSEA # 06-3158, 106 LRP 34379 (May 30, 2006).

[15] 603 CMR 28.08(5)(c). See also 34 CFR 300.502(d) (indicating that hearing officer may “request[] an independent educational evaluation as part of a hearing on a due process complaint”).

[16] 603 CMR 28.04(5)(c)1.

[17] 34 CFR 300.502(e)(1) and (2).

[18] Schaffer v. Weast, 546 U.S. 49, 60-61 (2005). See also 34 CFR 300.502(e) (limiting the conditions that a school district may impose upon a parent’s independent education evaluation obtained at public expense). See also M.M. v. Lafayette School Dist., 2012 WL 398773, 11 (N.D.Cal.) (N.D.Cal.,2012) (“would be difficult for many parents to ‘match the firepower’ of the government if they could not afford to pay the evaluator to present her findings at an IEP meeting that necessarily includes the District’s assessment team. The Court therefore determines that the ALJ erred in not awarding the costs of presentation as part of the ‘full cost’ of the independent IEE.” [footnote and citation omitted] aff’d in relevant part, 767 F.3d 842 (9th Cir. 2014); Meridian Joint School Dist., No. 2 v. D.A., 2013 WL 6181820, 5 (D.Idaho 2013).

[19] See 114.3 CMR 30.00.

[20] See MGL c. 71B, s.3 (“the secretary of health and human services under section 13C of chapter 118E shall establish rates for educational assessments conducted or performed by psychologists and other trained certified educational personnel notwithstanding the provisions of any general or special law or rule or regulation to the contrary”).

[21] EOHHS Team Evaluation Services regulations specifically address the rates for IEEs (114.3 CMR 30.00). These regulations were last revised in July, 2004 when the Division of Health Care Finance and Policy had responsibility to issue these regulations. For purposes of IEE rates, CHIA has also used two other more generic rate regulations for IEE rates regarding certain kinds of evaluations because these more generic rate regulations have been updated more recently than the Team Evaluation Services regulations. These two more generic rate regulations are for Psychological Services (114.3 CMR 29.00) and Rehabilitation Center Services, Audiological Services, Restorative Services (114.3 CMR 39.00). The former of these was last revised in January 2008 and the latter in June 2011.

Team Evaluation Services regulations only govern non-hospital-based evaluators. Separate Medicaid regulations govern hospital rates. Hospital evaluators have been willing to use Medicaid rates to conduct IEEs but there is often an excessive wait time (for example, 6 months to a year) and the evaluations typically do not include a school observation, which is often a critical component. Hospital rates for evaluations, which vary by individual hospital, are higher than the IEE rates.

[22] Letter to Anonymous, Office of Special Education Programs, United States Department of Education, 22 IDELR 637 (February 2, 1995).

[23] For example, neuropsychological evaluations are often the most important evaluation in determining a student’s educational needs and paramount to developing an appropriate IEP. The state maximum rate for a neuropsychological evaluation is $900, while $2,500 or more is the rate typically charged by private evaluators. The state rate is set at an hourly rate that is 28% lower than Medicare and 38% lower than BlueCross/Blue Shield.

[24] See 603 CMR 28.04(5)(a).

[25] To address these shortcomings, “An Act to Provide Equal Access to Evaluations for Children with Disabilities” has been filed with the Massachusetts legislature (lead Sponsors: Rep. Tom Sannicandro and Sen. Barbara L’Italie; House Docket No. 1027- Senate Docket No. 1626).

[26] MGL c. 71B, s. 3. See also 603 CMR 28.07(1)(a)3 (“Parents have the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services”); Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes (hereinafter, “Advisory SPED 2009-2”). The Advisory SPED 2009-2 is a particularly useful source of guidance.

[27] MGL c. 71B, s. 3 (“Parents and/or their designees shall be afforded access of sufficient duration and extent to enable them to evaluate the child’s performance in a current program and/or the ability of a proposed program to enable the child to make effective progress.”); Advisory SPED 2009-2 (“The law is clear that a district may not arbitrarily limit observations to certain academic classes if such limitations would not allow an observer to evaluate fully whether a program is or would be appropriate for the identified student with disabilities.”).

[28] MGL c. 71B, s. 3 (school committee must allow “observations of a child’s current program …, including both academic and nonacademic aspects of any such program”).

[29] See MGL c. 71B, s. 3 (“Parents and/or their designees shall be afforded access of sufficient duration and extent to enable them to evaluate the child’s performance in a current program and/or the ability of a proposed program to enable the child to make effective progress.”); Advisory SPED 2009-2 (“The law is clear that a district may not arbitrarily limit observations to certain academic classes if such limitations would not allow an observer to evaluate fully whether a program is or would be appropriate for the identified student with disabilities.”).

[30] Advisory SPED 2009-2. (“The complexities of the child’s needs, as well as the program or programs to be observed, should determine what the observation will entail and what amount of time is needed to complete it.”).

[31] MGL c. 71B, s. 3 (“To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall …”); Advisory SPED 2009-2 (“The purpose of the law is to ensure that parents can participate fully and effectively in determining the child’s appropriate educational program.”).

[32] See, e.g., In Re: Mansfield, BSEA # 1307030, 19 MSER 100 (May 2, 2013) (allowing the expert to observe for an entire, continuous school day on the basis of the expert’s determination that this was necessary to appropriately evaluate the student).

[33] MGL c. 71B, s. 3.

[34] Advisory SPED 2009-2 (“The obligation to provide “timely access” to the program for purposes of observation is a core component of the observation law. … It is also important to note that the timely access requirement does not mean that a school district must allow observations on demand, or that parents or designees may unilaterally set a schedule for observations. As noted, school administrators may take a reasonable period of time to inform school staff and plan the logistical aspects of an observation.”).

[35] MGL c. 71B, s. 3 (“School committees shall impose no conditions or restrictions on such observations that are not necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation.”); Advisory SPED 2009-2 (“The observation law states that districts may not condition or restrict program observations except when necessary to protect: 1. the safety of the children in the program during the observation; 2. the integrity of the program during the observation; and 3. children in the program from disclosure by an observer of confidential or personally identifiable information he or she may obtain while observing the program.”) (emphasis in original).

[36] Sebastian M. v. King Philip Regional School Dist., 685 F.3d 79, 86 (1st Cir. 2012).

[37] School Board of Independent School Dist. No. 11, Anoka-Hennepin v. Pachl ex rel. Pachl, 2002 WL 32653752, *7 (D.Minn. 2002).

[38] In Re: Northbridge, BSEA # 09-2533, 14 MSER 348 (October 30, 2008). I was the Hearing Officer in this dispute.

[39] Id.

[40] In Re: Pittsfield Public Schools & Central Berkshire Regional School District, BSEA # 08-4603, page 26 of slip opinion (October 3, 2008); In Re: Springfield Public Schools, BSEA # 06-2169, page 19 of slip opinion (July 10, 2006); In Re: Southwick-Tolland Regional School District, BSEA # 06-6583, 12 MSER 279, page 21 of slip opinion (October 26, 2006)

[41] In Re: Chicopee Public Schools, BSEA # 05-2920, 11 MSER 87, page 20 of slip opinion (June 8, 2005); In Re: Gill-Montague Regional School District, BSEA # 01-1222, 7 MSER 194, page 27 of slip opinion (August 17, 2001).

[42] In Re: Northbridge, BSEA # 09-2533, 14 MSER 348 (October 30, 2008).

[43] Schaffer v. Weast, 546 U.S. 49, 60-61 (2005).

[44] See also 34 CFR 300.502(e) (limiting the conditions that a school district may impose upon a parent’s independent education evaluation obtained at public expense) and 603 CMR 28.04(5)(c)1 (mandating that an IEE must be “equivalent” to the assessments done by school districts).

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