IEEs: What Criteria Can You Have? Gigi Maez & Nona Matthews, Walsh Gallegos Treviño Russo & Kyle P.C.

IEEs: What Criteria Can You Have? Gigi Maez & Nona Matthews, Walsh Gallegos Treviño Russo & Kyle P.C.

IEEs: What Criteria Can You Have? Presented by: Gigi Maez and Nona Matthews 1 Understanding the Essential Independent educational evaluation ( IEE ) 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. 34 C.F.R. 300.502(a)(3). 2 Understanding the Essential A parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency. 34 C.F.R. 300.502(b)(1). 3 Russo & Kyle P.C. 1

Understanding the Essential If a parent requests an IEE, the public agency must provide to parents information about 1) where an IEE may be obtained and 2) the agency criteria applicable for IEEs. 34 C.F.R. 300.502(a)(2). 4 Understanding the Essential Providing parents information on agency criteria applicable for IEEs. A public agency did not comply with the IDEA when it failed to provide IEE criteria to parents even after the parents pointed out their right to receive the IEE criteria. Christina Sch. Dist., 54 IDELR 177 (SEA DE 2010). A public agency s failure to maintain specific criteria for choosing an evaluator and a list of evaluators compelled it to pay for an out-of-town evaluator with a higher price tag. Dunmore Sch. Dist., 53 IDELR 107 (SEA PA 2009). 5 Understanding the Essential May the agency limit options of examiners for an IEE? If a public agency wishes to limit parents to using examiners from a list, the list must be exhaustive; that is, all qualified examiners in a geographic location must be included. A parent may use an examiner not on the list if a child s unique needs establish that no one on the list is qualified. Letter to Young, 39 IDELR 98 (OSEP 2003). 6 Russo & Kyle P.C. 2

Understanding the Essential After an IEE request, the public agency must either: 1) Initiate a due process hearing to show that its evaluation is appropriate or 2) Ensure than an IEE is provided at public expense, unless the agency demonstrates in a hearing under 300.507 that the evaluation obtained by the parent did not meet agency criteria. 34 C.F.R. 300.502(b)(2). 7 Understanding the Essential If an IEE is at public expense, the criteria, including evaluation location and examiner qualifications, 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 IEE. A public agency may not impose conditions or timelines related to obtaining an IEE at public expense. 34 C.F.R. 300.502(e). HOWEVER 34 C.F.R. 300.502(e). 8 Understanding the Essential In a recent decision, the Eleventh Circuit found a parent s IEE request moot when The parent did not indicate any disagreement with the evaluation, eligibility, or IEP at the initial ARD and two subsequent annual ARDs, Then contended the evaluation was improper and requested an IEE, and The district proposed a reevaluation and informed the parent that if they were dissatisfied with the reevaluation, then they could request an IEE. - 9 Russo & Kyle P.C. 3

Understanding the Essential The parental right to an IEE serves the purpose of furnishing parents with the independent expertise and information they need to confirm or disagree with an extant, school-district-conducted evaluation. Because a reevaluation of T.P. is due an order directing the District to pay for an IEE will no longer redress the procedural injury they allege... Thus, the Parents lack a legally cognizable interest in the outcome of the appeal, and their appeal is moot. T.P. v. Bryan Co. Sch. Dist., 65 IDELR 254 (11th Cir., July 2, 2015). 10 August 2011 - Seth s parents requested an IEE. The District granted the request up to $3,000 on the condition that the IEE complied with Louisiana Bulletin 1508, the criteria the District used to conduct an LD evaluation ( 35 dense pages of detailed directives ). The District provided a list of evaluators and a link to a digital version of Bulletin 1508. The parents engaged Dr. Brockman to conduct the IEE. 11 April 2012 Parents sent the District the IEE report. May 2012 District responded the IEE did not meet agency criteria due to 31 areas of noncompliance with Bulletin 1508 criteria and offered to speak to Dr. Brockman about the noncompliance. The parents never replied to the letter and Dr. Brockman never contacted the District. December 2012 Parents sent the District invoices for the IEE totaling $8066.50 seeking reimbursement. 12 Russo & Kyle P.C. 4

January 2013 The District claimed it received the invoices and request for reimbursement. February 2013 The District sent a letter to the Parents noting it could not reimburse them for the noncompliant evaluation. April 2013 Parent request a due process hearing. 13 The HO held he lacked jurisdiction to award reimbursement for the IEE because the parents stipulated that the IEE failed to comply with Bulletin 1508. Seth s parents appealed to the federal district court 14 The parents alleged the District waived its right to challenge the IEE because it failed to request a due process hearing. The court disagreed and ruled in favor of the District on that issue. Further, the court denied the parents reimbursement for the IEE because it did not comply with Bulletin 1508. 15 Russo & Kyle P.C. 5

5 th Circuit Court of Appeals Held the District was not required to request a due process hearing. Held the District timely demonstrated the IEE s noncompliance with criteria without unnecessary delay. Remanded the case for a determination of whether the IEE substantially complied with the agency criteria (Bulletin 1508). If so, reimbursement is warranted. 16 Issue #1 Initiation of the due process hearing. The parents alleged the District waived its right to refuse reimbursement because it failed to initiate a due process hearing to contest Seth s IEE and because it unnecessarily delayed in complying with its duties under IDEA s implementing regulations. The court disagreed. 17 34 C.F.R. 300.502 Parent right to evaluation at public expense. [ ] (2) If a parent request an [IEE] at public expense, the public agency must, without unnecessary delay, either (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an [IEE] is provided at public expense, unless the agency demonstrates in a hearing that the evaluation obtained by the parent did not meet agency criteria. 18 Russo & Kyle P.C. 6

The District did not waive the reimbursement issue by failing to request a due process hearing. The court distinguished the language in 300.502(b)(2)(i) from (b)(2)(ii). (b)(2)(1) requires the District to initiate the due process hearing. The District must request a due process hearing if elects to decline reimbursement on the ground that its own evaluation was appropriate. In contrast, (b)(2)(ii) only requires the District to deny reimbursement by demonstrating in a hearing that the IEE does not meet agency criteria. It does not require the agency to initiate or request the hearing. (emphasis added). 300.502(b)(2)(ii), whose plain text unlike that of (b)(2)(i) does not require the agency to initiate a hearing. (emphasis added). Prior USDE commentaries are of questionable value. 19 Timeliness Without Undue Delay The District did not have to initiate a hearing in order to preserve its objection to Seth s IEE. This is not to say, however, that the [district] could wait indefinitely, forcing [the parents] to either demand a hearing or forsake reimbursement. Rather, under 300.502(b)(ii), [the District] had to demonstrate the IEE s noncompliance with relevant criteria without unnecessary delay. Whether there is unnecessary delay should be measured from the submission of the IEE report and invoices. Is a 3 or 4 months an unnecessary delay? No, especially in light of the fact that the District attempted to informally resolve the dispute. 20 Must the IEE fully comply with the criteria? Substantial compliance is sufficient. Substantial compliance means that insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provide detailed, rigorously produced and accessibly presented data. The Fifth Circuit remanded for further fact findings on the issue of substantial compliance. 21 Russo & Kyle P.C. 7

What about cost criteria? In any event, however, appellants will not be entitled to the full cost of the evaluation they obtained. Appellants knew of OPSB s $3,000 cost cap for IEEs, yet they spent over $8,000. IDEA allows schools to enforce reasonable cost criteria for IEEs as long as parents in unique circumstances have the opportunity to request exemption. 22 Reimbursement as opposed to up front payment (Footnote 82) Petitioners also object to having been required to pay the cost of the IEE upfront. However, as DOE has explained, The IDEA does not address whether funding should be paid as reimbursement or as a cash advance. If the parent requests advance funding for IEE-related expenses and the public agency denies that request, the parent could request a due process hearing if the parent believes that denial of advance funding would effectively deny the parent the right to a public-funded IEE. OPSB offered petitioners the opportunity to demonstrate unique circumstances that would justify the board s paying directly for the IEE, but petitioners did not respond. 23 Criteria: General Evaluation Criteria The IDEA regulations contain specific procedures and requirements applicable to conducting evaluations. 34 C.F.R. 300.304. IEE providers must meet the same evaluation criteria requirements as the public agency, including performing a review of existing evaluation data, obtaining input for the child s parents, and using of a variety of assessment tools and strategies. 71 Fed. Reg. 46,690 (2006). 24 Russo & Kyle P.C. 8

Criteria: What About In-Class Observation? If a public agency includes or permits in-class observation as part of its public evaluation, it must allow the same opportunity to an IEE provider. Letter to Wessels, 16 IDELR 735 (OSEP 1990). The IEE provider is subject to the school s reasonable protocols. Manatee Co. Sch. Dist., 51 IDELR 289, (SEA FL 2008). The public agency can develop reasonable guidelines for the independent evaluator s oncampus activities. Sch. Bd. Of Manatee Co., Fl. v. L.H., 53 IDELR 149 (M.D. FL 2009). 25 Criteria: Qualifications of the IEE Provider A public agency may require an IEE examiner to hold a particular license when the public agency requires the same licensure for personnel who conduct the same types of evaluations for the public agency. Letter to Anonymous, 56 IDELR 175 (OSEP 2010). Policies need to clearly communicate to parents and others that the same criteria are used for both public and independent examiners. Letter to Petska, 35 IDELR 191 (OSEP 2001). 26 Criteria: Qualifications of the IEE Provider Examples of inappropriate qualification requirements for IEE providers Criteria prohibiting an IEE examiner s Association with private schools, organizations that advocate the interests of parents, Organizations that advocate particular instructional approaches, and Acting as an expert witness against public schools. Or requiring recent and extensive experience in the public schools. Letter to Petska, 35 IDELR 191 (OSEP 2001). 27 Russo & Kyle P.C. 9

Criteria: Location The public agency violated its obligation to provide an IEE at public expense when the agency criteria included 1) a 30-mile radius limit and 2) a maximum of $1000, yet: Three of the five providers on the list worked outside of the 30- mile radius set by the public agency and Some of the providers on the list charged more than the allotted amount. Dover City Schs., 57 IDELR 208 (SEA OH 2011). 28 Criteria: Location A district was not required to pay travel expenses when the necessary services were available within the community. Utah Schs. for the Deaf and the Blind, 113 LRP 31076 (SEA UT 2013). 29 Criteria: Cost Federal Guidance A public agency may establish maximum allowable charges for specific tests; however, The maximum must only eliminate unreasonably excessive fees and Must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the [public agency s] criteria. Letter to Fields, IDELR 213:259 (OSEP 1989), citing Letter to Kirby (OSEP 1989). 30 Russo & Kyle P.C. 10

Criteria: Cost Federal Guidance Since public agencies must provide parents with information about where IEEs may be obtained, provided the options are consistent with Secs. 300.530-300.536, public agencies have some discretion in the cost if it is at public expense. Analysis of Comments, Federal Register (March 12, 1999). It is the Department s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs. 71 Fed. Reg. 46,689 (2006) 31 Criteria: Cost Cases The district established reasonable cost criteria for a publicly funded IEE, and the parent failed to meet her burden of proving that the cost criteria unreasonably ignored her unique circumstances. Tolar Indep. Sch. Dist., 22 IDELR 174 (SEA TX 1995); see also Tatum Indep. Sch. Dist., 21 IDELR 206 (SEA TX 1994). 32 Criteria: Cost Cases The parents proposed an evaluator whose fee was several times more than the $1,500 set by the public agency. The Hearing Officer explained that the IDEA regulations permit reasonable limitations on the right to an IEE, and OSEP has issued letters opining that public agencies may set reasonable caps. Fleetwood Area Sch. Dist., 111 LRP 51069 (SEA PA 2011). 33 Russo & Kyle P.C. 11

Criteria: Cost Cases The parents failed to meet their burden to show the District s position on IEEs violated the IDEA when the District s cost criteria was: Based upon research in typical costs for evaluations within the geographic area, consideration of the evaluator s credentials and the unique needs of the student, and approximations of costs up to 35% higher than Medicaid rates for the service. Data to establish the guidelines is gathered from two regional education services center regions and includes objective data for school district s various professionals and private providers. Lewisville Indep. Sch. Dist., 115 LRP 30454 (SEA TX 2015). 34 Criteria: Unique Circumstances A public agency would need to provide a parent the opportunity to demonstrate that unique circumstances Justify selection of any evaluator whose fees fall outside the agency s cost containment criteria. 71 Fed. Reg. 46,690 (2006). Justify a waiver of the criteria. Letter to Anonymous, 20 IDELR 1219 (OSEP 1993); Letter to Parker, 41 IDELR 155 (OSEP 2004); Letter to Anonymous, 56 IDELR 175 (OSEP 2010). 35 Criteria: Unique Circumstances [I]f the total cost of an IEE obtained by the parent exceeds the [public agency s] cost criteria and there is no justification for the excess cost, the IEE will be publicly funded only to the extent of the [public agency s] maximum allowable charge. M.V. v. Shenendehowa Central Sch. Dist., 60 IDELR 213 (N.D.N.Y. 2013). 36 Russo & Kyle P.C. 12

Criteria: Acceptable Miscellaneous Criteria Public agencies may set timelines for parents to submit an IEE report prior to scheduling an ARD committee meeting; however, any such deadline would have to be made known to the parents and align with state-imposed criteria. Letter to Anonymous, 58 IDELR 19 (OSEP 2011). 37 Criteria: Unacceptable Miscellaneous Criteria Requiring parents to submit the bills for the cost of the evaluation to their private insurance company. Letter to Thompson, 34 IDELR 8 (OSEP 2000). Prohibiting IEE providers from using age- and gradelevel scores in their assessment reports. Letter to LoDolce, 50 IDELR 106 (OSEP 2007). Prohibiting independent evaluators from making recommendations about a child s IEP if it allows its own evaluators to make such recommendations. Letter to LoDolce, 50 IDELR 106 (OSEP 2007). 38 Criteria: Unacceptable Miscellaneous Criteria Criteria denying reimbursement prior to discussion of the public agency s evaluation at an ARD committee meeting. Requiring parents to provide a written statement of its disagreement with the public agency s evaluation. Requiring the parent to provide notice of the IEE request in an ARD committee meeting. Letter to Anonymous, 55 IDELR 106 (OSEP 2010). 39 Russo & Kyle P.C. 13

Criteria: Unacceptable Miscellaneous Criteria Implementing IEE procedures which allow the public agency to essentially broker the IEE with a pre-approved examiner. Requiring parents to participate in an IEE assessment meeting with the public agency. Gresham-Barlow Sch. Dist. 10J, 64 IDELR 93 (SEA OR 2013). 40 When the IEE Evaluator is not on the Public Agency s List The public agency: May initiate a due process hearing to demonstrate that the evaluation obtained did not meet the public agency criteria applicable for IEEs or there is no justification for selecting an evaluator that does not meet agency criteria or Must assure that the parent is reimbursed for the evaluation. Letter to Parker, 41 IDELR 155 (OSERS 2004). 41 When the IEE Evaluator is not on the Public Agency s List The court found the District was not obligated to reimburse the parents the cost of the IEE because it did not meet agency criteria. B. v. Orleans Parish Sch. Dist., 64 IDELR 301 (January 20, 2015). 42 Russo & Kyle P.C. 14

43 Russo & Kyle P.C. 15