When in the midst of a due process hearing, many school districts struggle with whether it is a good time to do an evaluation of a student out of fear that the evaluation will be used in an attempt to show that prior programing by the district was inappropriate. In a recent unpublished decision, the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, provided school districts some comfort in performing such evaluations without fear.

In the case, parents attempted to use a fall 2003 evaluation to establish that the district's 2002-2003 IEP was inappropriate. The court found that this approach was not permissible, given that the appropriateness of an IEP is to be determined from the the information available to the IEP team when it develops the IEP. However, it is important to note that in this case the student was not attending school in the district, as the parents placed the student elsewhere and sought tuition reimbursement, and presumably the 2003 evaluation could be used to show progress or lack of progress, if the student had been in the district.

The case, consistent with several other Court of Appeals, makes clear that the appropriateness of an IEP is to be based on the information available at the time the IEP is developed and subsequent evaluations should not be used to show the IEP was inappropriate. This should give school districts some comfort in conducting evaluations, even in the midst of an ongoing due process hearing.