Evaluations are a foundational tool by which students are determined (or not) to be eligible for special education and related services under the Individuals with Disabilities Education Act (“IDEA”). If eligibility is established, the underlying evaluations often play a critical role in determining the scope and content of these services. In situations where parents disagree with the evaluation conducted by the school, it is no surprise that IDEA’s procedural safeguards include “an opportunity … to obtain an independent educational evaluation [“IEE”] of the child.”
An IEE is “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” IDEA regulations contemplate three categories of IEEs: (1) those obtained by the parents at their own, private expense; (2) those obtained, pursuant to parent request, at the school's expense; and (3) those ordered by a hearing officer in the context of a due process hearing.
Here are five tips for school districts to keep in mind when a parent requests an IEE at the school's expense.
TIP #1 - CERTAIN PREREQUISITES MUST BE MET TO OBTAIN AN IEE AT PUBLIC EXPENSE
Three conditions must be met in order to invoke a parent’s right to an IEE at public expense. First, the IEE request must be preceded by an evaluation conducted by the school district. Second, the parent must disagree with the school district’s evaluation. Third, the parent’s request for public funding of the IEE must be presented in a timely manner. (34 C.F.R. § 300.502).
TIP #2 - OPTIONS THAT A SCHOOL DISTRICT HAS WHEN A PARENT REQUESTS AN IEE
Once a school district receives a request for an IEE at public expense, the school has two primary options - (1) ensure the IEE is provided at public expense; or (2) file for due process to defend the school district's original evaluation. (34 C.F.R. § 300.502).
TIP #3 - THERE IS A LIMIT ON THE NUMBER OF IEEs A PARENT CAN REQUEST
Parents are entitled to only one IEE at public expense “each time the public agency conducts an evaluation with which the parent disagrees.” (34 C.F.R. § 300.502(b)(5)). (However, it should be noted that the "one IEE limitation" does not mean that the school district may limit parents to only one examination when the student's disability (or suspected disability) requires assessment in multiple areas).
TIP #4 - THE SCHOOL DISTRICT MAY BE ABLE TO PUT A "DOLLAR CAP" ON THE IEE
This tip comes with important warnings. In comments issued with the final amendments to its IDEA regulations in 2006, the Department of Education stated: “It is the Department’s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs.” The Department has also recognized that “it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency as well as to personnel used by the parents.” However, the school district cannot simply use an "average IEE charge" in the geographic area - only "unreasonably excessive IEE fees" may be challenged.
TIP #5 - THE SCHOOL DISTRICT MAY BE ABLE TO REQUIRE A PARENT TO CHOOSE FROM A LIST OF SCHOOL-COMPILED EVALUATORS
The parent, not the school district, has the right to choose which evaluator on a list will conduct the IEE. A school cannot simply select the evaluator from its approved list and require the parent to obtain the IEE through the school district's list. However, if the child’s needs "can be appropriately evaluated by the persons on the list and the list exhausts the availability of qualified people within the geographic area," then a school district can restrict parents to selecting from the list. This decision is always difficult and should involve consultation with the school district's legal counsel.
The IEE process can be emotional, expensive, and time-consuming for the parents and school district. However, these 5 tips should help South Dakota's school districts in making good decisions when faced with an IEE issue.