5/10/2017 INDEPENDENT EDUCATIONAL EVALUATIONS. What Is an Independent Educational Evaluation (IEE)?

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1 INDEPENDENT EDUCATIONAL EVALUATIONS SELN Meeting What Is an Independent Educational Evaluation (IEE)? An Independent Educational Evaluation (IEE) is a parental entitlement guaranteed by the procedural safeguard section of the Individuals with Disabilities Education Act ( IDEA ). 34 CFR 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 Quick Tip: Typically IEEs are found within Procedural Safeguards sections of reference materials rather than the Evaluation sections. Private Evaluation vs. Independent Educational Evaluation Private Evaluation Obtained at Private Expense Paid for by parents IEE Obtained at Public Expense Paid for by school district May be obtained at any time Results of the evaluation must be considered by the LEA, if it meets LEA criteria, in any decision made with the respect to the provision of a free appropriate public education to the child; and May be presented by any party as evidence at a hearing on a due process complaint regarding the child. Parents may seek reimbursement for a private evaluation if it meets criteria 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. 34 CFR (b)(5) Results of the evaluation must be considered by the LEA, if it meets LEA criteria, in any decision made with the respect to the provision of a free appropriate public education to the child; and May be presented by any party as evidence at a hearing on a due process complaint regarding the child. 1

2 Who Can Request an IEE? Who Can Grant an IEE? Who Can Request an IEE? A parent or legal guardian has the right to request an IEE at public expense. 34 CFR (a)(1) A Hearing Officer may request an IEE as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense. 34 CFR (d) Who Can Grant an IEE? The Individuals with Disabilities Education Act and state regulations do not specify which school district personnel are responsible for making the determination to grant or deny a request for an IEE. Typically the Director of Special Education is responsible for considering and responding to a request for an IEE. Quick Tip: Add to your Operational Guidelines how an IEE request should be made (ex. in writing to Sp. Ed. Director). Train ARDC and Campus Administration on how to respond to a request made during a parent or ARD meeting. When Does a Parent Have the Right to an IEE? 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. 34 CFR (b)(1) But we haven t even evaluated yet.. If the school district has not conducted an evaluation for the parent or legal guardian to disagree with, the parent or legal guardian s request for an IEE is premature. The district may deny the request for an IEE without filing for due process. But the district s evaluation is appropriate If the school district determines that the school district evaluation is appropriate the LEA may file a request for a due-process hearing to defend the validity of its assessment. The referral question and FIE focused on one disability area, but the parent wants an IEE in another Typically a parent or legal guardian is not entitled to an IEE in an area other than the area that the school district assessed. However, the parent or legal guardian may be entitled to an IEE if the school district s assessment is insufficient because the evaluator failed to assess in all areas of suspected disability for the field. Quick Tip Remember to give Prior Written Notice if the IEE is being denied based on the request being premature. Is There a Timeline for Requesting an IEE? The federal regulations do not address how long a parent has to request an IEE at public expense. Typically Operating Guidelines are written with a one year timeline based on the Texas 1-year statute of limitations outlined in 19 TAC (c). Case law in Texas has upheld a one year timeline. Beaumont Indep. Sch. Dist., 114 LRP 7471 (SEA TX 2013) Ottis W. vs. Brazos ISD, 113 LRP 2098 (SEA TX 2012) Case law outside of Texas has upheld IDEA s two-year statute of limitations timeline. TP v. Bryan County Sch. Dist., 114 LRP 45 (S.D. Ga. 2014) Placentia-Yorba Linda Unified Sch. Dist., 112 LRP (SEA CA 2012) Atlanta Pub. Schs., 51 IDELR 29 (SEA Ga. 2008) 2

3 How Should a School District Respond to an IEE Request? If a school district receives a request for an IEE the LEA must legally respond by either (1) file a due process complaint to request a hearing to show that its evaluation is appropriate; or (2) ensure that an IEE is provided at public expense. Timeline: The school district must choose one of these two options without unnecessary delay. A good operational definition of without unnecessary delay could be 15 school days as it matches the timeline established for parent requests for FIIEs. Yes to the IEE: 1. Provide information about where an IEE may be obtained; and 2. Provide the school district s criteria applicable to an IEE. 34 CFR (a)(2) Prior Written Notice Distribute a copy of the Procedural Safeguards Release of Information between the LEA and IEE Evaluator No to the IEE: 1. File Due Process to defend the district s evaluation (and write a Prior Written Notice) Write a Prior Written Notice and indicate why the IEE was denied (district has a right to evaluate first or the parent has already requested an IEE for the same evaluation being disputed). Due Process would not be filed. Distribute Procedural Safeguards What Criteria May a District Impose on a Publicly Funded IEE? What the law says 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. 34 CFR (e)(1) Except for these criteria, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. 34 CFR (e)(2) Criteria to Establish in District Operating Guidelines Qualifications of the Evaluator A district may establish criteria that requires that independent evaluators meet certain qualifications, as long as the qualifications are the same as those imposed on evaluations conducted by or on behalf of the school district. Geographical Criteria A district may establish criteria that restrict the location of the evaluation, as long as the restrictions are reasonable and parents are given the opportunity to demonstrate unique circumstances justifying the need to exceed the limitations. Cost Criteria A district may establish a reasonable maximum dollar amount it will pay or reimburse for an IEE as long as parents are given the opportunity to demonstrate unique circumstances justifying the need to exceed the limitations. The maximum dollar amount must be reasonably calculated and allow parents to choose from qualified professionals in the area and only eliminate unreasonably excessive fees. When a district does not adopt a cost criteria, parents are free to obtain the services of any qualified evaluator. Letter to Thorne, 16 IDELR 606 (OSEP 1990) 3

4 Other Criteria Operating Guidelines may further define the IEE with criteria or requirements as long as the criteria do not effectively limit a family s access to an IEE. Require an observation Require the IEE evaluator to make themselves available for consultation via telephone or in person Provide a signed, original written report, given directly to LEA prior to the ARD meeting Require the IEE Evaluator to complete state and national criminal history background screening(s) as would be required for any volunteer or contract employee working directly with students. Require an evaluation that provides the ARD committee with sufficient information to determine whether or not the student has a disability and is in need of specially designed instruction. Criteria that is not allowed Not allow specific evaluators who otherwise meet qualification. Require a parent to attend a planning meeting for the IEE. Require advanced notice to fund an IEE (parent may ask for reimbursement for privately funded evaluations). Letter to Imber, 21 IDELR 677 (OSEP 1994) Require the family to provide extensive or specific points that they disagree with in the FIE Delay the IEE so that the district may correct their FIE. Letter to Anonymous, 21 IDELR 1185 (OSEP 1994) Create criteria that typical IEE evaluators would not be able to meet (unreasonable criteria) such as knowledge or expertise in specific programs thus limiting the family s ability to access an IEE. Preferred List of Qualified Evaluators The LEA may create a list of Qualified Evaluators to give to parents when an IEE is requested. This is a good way to meet the requirement to inform parents where an independent educational evaluation may be obtained. 34 CFR (a)(2) Non-Exhaustive List: The district may create a list of evaluators in the area that meet the minimum criteria. Indicate on the list that the parent may choose any evaluator not on the list that meet the minimum criteria. Exhaustive List: The district may limit parents to using only the examiners on their list, but the list must include ALL evaluators that meet the criteria. If a district fails to list all qualified examiners, the parents are free to choose a qualified evaluator of their choosing. Exceptions: Parents should be given an opportunity to demonstrate that there are no appropriate evaluators for their child within the stated criteria thus justifying a waiver. Region 13 does not maintain an IEE Qualified Examiner list as we are unable to endorse specific examiners. Also, the LEA list should be unique to the LEA since each district has their own Examiner Qualification criteria. Quick Tip Double check that your IEE Qualified Evaluators list is current and that the examiners still meet your current criteria. How to Pay for an IEE Payment upon receipt of written evaluation Advance funds if denial of advancing funds effectively denies the right to an IEE Reimbursement of a private evaluation funded by the parent Recovery of Out-of-Pocket Costs If an IEE is publicly funded - the parents related travel, meal and lodging expenses should be funded as well. If the parent chooses an evaluator outside of the geographical region in the criteria (and there are qualified evaluators within the geographical region) the parent is not entitled to reimbursement for costs associated with traveling to/from the IEE evaluator. The District may require to be billed at the rate that the student s family would be billed if they were paying out of pocket (ex. Sliding scale). 4

5 Consideration of an IEE What does it mean to consider the IEE or Private Evaluation? Consider is not defined in the regulations. A working operational definition would be to reflect on or think about with some degree of care or caution. T.S. ex rel. S.S. v Board of Educ. of the Town of Ridgefield, 20 IDELR 889 (2d Cir. 1993) Documentation of consideration Review the private evaluation or IEE within an ARD meeting and document this action and discussion (agreements and disagreements) within the deliberations. Think of the IEE or Private Evaluation as a Data Source. The IEE or private evaluation should be considered a data source when planning the student s IEP. If the ARDC determines that the IEE is compelling and a change of disability is needed the ARDC may use a REED to bring in the new information presented in the IEE. Quick Tip: When considering the IEE at the ARD meeting encourage all team members to keep an open mind. Encourage the school team to review the evaluation with objectivity and remind the family that the private evaluation/iee does not eclipse the school district evaluation. Reflection When an IEE is requested the team should reflect on the quality of the school district evaluation and identify any areas where additional training may be needed. Quick Reference Pg. 3 & 4 Pg. 12 & 13 Evaluation: Independent Education Evaluations 18-FW-Summary.aspx?FID=198&DT=G&LID=en E-2 & E-3 5

6 Further References TCASE: Interactive Convention 2014 Amber King, Thompson & Horton LLP - Learning Labs. IEEs at Your Expense: What to Consider and How to Respond expense_what_to.pdf Region 4: Independent Educational Evaluations Resources for Implementation Sample Operating Guidelines Sample Prior Written Notices 6