Recently, I have gotten a lot of questions about Independent Educational Evaluations. Many parents think that the IEE is the magic bullet to shoot back at any district proposal with which the parent disagrees. Others have requested an IEE and gotten a letter placing so many conditions that a fair IEE is next to impossible. So, I decided to write a four part series on IEEs to hopefully answer some of the more prevalent questions I am getting.
The IDEA provided parents with one significant tool that the United States Supreme Court has suggested was designed to level the playing field for parents. That is the independent educational evaluation at public expense – the IEE for short. The purpose of an IEE is to ensure that parents, in contesting an evaluation, “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” (Schaffer v. Weast, 546 U.S. 49, 60 (2005). Many advocates and attorneys jump to ask for an IEE and often find that request backfiring. Sometimes it is made too early; sometimes it is made too late. Often, it doesn’t get you what you really wanted.
So, in order to understand WHEN to ask for an IEE, it is first important to understand what an IEE is and how it works.
An IEE is a parent’s response to a district evaluation. What that means is that WHEN a district assesses your child, whether for a triennial assessment or something new that has come up, if the parent doesn’t agree with the assessment, the parent has the right to ask for an IEE. Thus, the first part of the equation is that the district has assessed.
For a district to assess, they must first develop an assessment plan and get your written consent. If the district is simply doing the same assessments that it does on all children, then that is NOT an assessment for which an IEE would be permissible. Some districts regularly do “running reading” records, using the DRA or other assessment tool. Others use standardized testing such as MAPS testing. All schools participate in state mandated testing such as the STAR or AIMS test. These are not assessments for which an IEE will lie.
Similarly, some districts have gone to a Response to Intervention process whereby they do not first assess a student for special education eligibility. While the use of RTI to delay special education assessment is a separate topic, and one outside the parameters of this IEE blog, for now, it is enough to note that the use of RTI does not result in the parent getting an IEE. The parent does not have the right to obtain an IEE at public expense before the district completes a special education evaluation simply because the parent disagrees with the district’s decision to use RTI. 71 Fed. Reg 46,540, 46,689 (Aug. 14, 2006) (codified at 34 C.F.R. §300.503 (2008).
But, if the district is doing a formal assessment for eligibility or to review present levels, and the parent disagrees, then the parent has the right to request an IEE. Many districts, for example, do an “assessment” to determine whether a child needs an aide or to evaluate a child’s behavior. Each of these would require an assessment plan and would allow a responding IEE, if that is what the parent wants. Whether that is what you really want, remains to be seen. But, the basics here are simply to evaluate WHEN the right exists. How to exercise it and when are more difficult questions that will be discussed in later installments in this series.
For now, a parent disagrees with an evaluation. But, do you really disagree with the assessment or with the conclusion of the team that is made based on the assessment? Ah, that is a much more difficult question. This is a key distinction that does have a major difference. Often, when a parent disagrees with an assessment, and, in order to obtain an IEE, you must first disagree, the district will ask the parent why. There is no requirement for a parent to disclose the basis of the disagreement but often, parents are lulled into the sense of “Gee, I want to look cooperative” and they then state a reason for their disagreement. It is important to remember that the public agency may ask for the parent’s reason why he or she objects to the public assessment, but may not require an explanation, and the public agency may not unreasonably delay either providing the independent educational assessment at public expense or initiating a due process hearing if the parent refuses to provide any substantive explanation. (34 C.F.R.§300.502(b)(4). If you decide to give them an explanation, do not fall into the trap of telling them that the reason is that you disagree with the conclusion they have reached. If you do, the district will likely refuse to fund the IEE claiming that the disagreement is not with the assessment and that the “conclusion” is something for the team to discuss. So, the point here is that if you really want an IEE, and if an IEE is something that will benefit you, do not give them ammunition to refuse it if you don’t have to. The most you need to say is that “I simply do not agree with this assessment and believe that an independent person who is not affiliated with the district should look at the same issues”.
If the district approves the IEE, the district cannot limit the parent’s choice or otherwise impede the exercise of the IEE by its actions. Districts often do this by sending out lists with “approved” evaluators and price caps. The Office of Special Education Programs (OSEP) has said that both are permissible provided that a parent still retains the right to select their evaluator and obtain the IEE at public expense. If your chosen person is not on the list, you have the right to ask the district for their minimum qualifications for evaluators and choose anyone who meets or exceeds those qualifications. If the price limitations are prohibitive because no one will actually complete the IEE for the amount approved, you have to be able to request additional funding, something I will talk about in the third installment of this series. For now, however, as long as what the district does is not eliminating your ability to get what you are entitled to, one way or the other, they can set caps and they can give you a list.
Once approved, most districts send a purchase order to the assessor. You want to make sure that there is a funding agreement directly between the IEE assessor and the district because you would be surprised how many times the district decides not to pay. While a P.O. does not guarantee that they will comply with their obligation to pay, it helps (and it gives the assessor legal resource against the district for non payment). You want to make sure that the P.O. will include the IEE provider coming to the IEP meeting to discuss the evaluation because it is not mandated that they do this. They can give you the IEE, and then have their people review it at an IEP meeting.
Remember, the district does not have to change its course of action because of an IEE. They need only “consider” it. That means that they have to listen to the recommendations but does NOT mean they have to agree to it. They do NOT have to allow your IEE to come to an IEE by funding that, but, if they refuse to fund the attendance, you have the right to pay for that and to bring the IEE to any IEP meeting. It is simply important to remember that simply because you got an IEE does not mean that they are going to bow to whatever recommendations your IEE got.
So, why then do you want to go through the hassle and take the time (usually 60 days) to fight for an IEE and have a meeting? Well, that is the topic of part two of this series. Stay tuned.
November 1, 2013
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January 11, 2012
What's in a Label? When a Rose By Any Other Name May Not Be a Rose.