A federal appeals panel has rejected a challenge to a long-standing federal regulation that requires school districts to pay for parents’ evaluations of students’ potential disabilities.

The challenge was brought to the U.S. Court of Appeals for the Eleventh Circuit by the Jefferson County Board of Education in Birmingham, Alabama. The school district’s legal challenge had been opposed by disability advocacy groups and the Obama administration.

The regulation states a school district, in addition to making its own evaluation of a child’s disabilities, must reimburse parents for an independent evaluation unless a judge finds the school evaluation was appropriate. A lawyer for the family in the case said she’s not aware of another case in which the 35-year-old regulation has been challenged.

“It’s an extremely significant decision,” said the lawyer, Deborah Mattison of Wiggins Childs Quinn & Pantazis. Without the right to a free independent evaluation, she said parents wouldn’t be able to contest evaluations by school districts.

Explaining that independent evaluations become foundations for further litigation against schools over services provided to students, the school board argued federal education officials didn’t have the authority to promulgate the regulation. The three-judge appellate panel disagreed in a Nov. 21 ruling, saying Congress clearly intended to authorize the regulation in passing the Individuals with Disabilities Education Act.

The law enacted in 1975 says public schools must provide a free and appropriate public education to meet the needs of students with disabilities. Educational systems receive federal funding in exchange for compliance.

At the center of the case is a boy with autism, identified in court papers only as A.C. The Jefferson County school board initially evaluated A.C. in 2002 and determined he was eligible for special education services. At issue were re-evaluations conducted during the 2005-06 school year when he was enrolled in a public kindergarten.

A.C.’s parents said the school’s re-evaluation indicated he complied with directions only when he was “yelled at” and could not learn without being restrained. The parents then obtained a private evaluation from a group that specializes in students with autism. It determined A.C. was capable of functioning at a higher level and recommended services and methods that had not been provided by his school, the parents said.

Independent Review

An Alabama administrative hearing officer decided the parents were entitled to reimbursement for that evaluation, and U.S. District Judge L. Scott Coogler rejected the school district’s arguments against paying.

On appeal, the school district argued the regulation isn’t authorized by the IDEA because the law doesn’t say explicitly that local agencies must fund a parent’s independent evaluation. The IDEA states a parent has a right to obtain an independent evaluation, but the school district argued that right means only that the evaluation will be considered by the school board.

Joined by Circuit Judge Adalberto Jordan and visiting Senior U.S. District Judge W. Terrell Hodges of Ocala, Circuit Judge Rosemary Barkett rejected the board’s argument. She said parents don’t need the IDEA to give them the right to take their child to a privately paid evaluator.

“We cannot conclude that Congress extended to parents the ‘opportunity … to obtain an independent education evaluation’ at their own expense merely to secure for parents what they already could obtain without the statute,” she wrote.

Barkett also noted the current version of the IDEA expressly requires the preservation of any IDEA regulation that existed July 20, 1983, and provided protection for children. Congress reauthorized the IDEA in 1990, 1997 and 2004 without registering any disapproval of the regulation mandating a free independent evaluation, Barkett added.

She emphasized the law was supposed to establish a cooperative process between parents and schools to develop educational plans for children with disabilities.

“Without public financing … a class of parents would be unable to afford an [independent evaluation], and their children would not receive as the IDEA intended ‘a free and appropriate public education’ as the result of a cooperative process that protects the rights of parents,” Barkett wrote.

The panel also rejected without elaboration school district arguments that the administrative hearing officer did not have jurisdiction to hear the parents’ reimbursement claim and the parents’ independent evaluation did not qualify for reimbursement under the regulation. The school district argued the parents already had received several previous evaluations.

The school district’s lawyer, Carl Johnson of Bishop, Colvin, Johnson & Kent in Birmingham, said Tuesday he wouldn’t have comment on the decision until he met with his client to review its options.

Mattison, who represents A.C.’s family, said the child remains in the Jefferson County school system, and there has been no further litigation about his educational program.

“I think the decision was clear,” she said, “and we’re just really happy with the result.”