So, you have requested an IEE and “without unnecessary delay”, you have gotten a response from the district. It turns out that a district has only TWO responses that it can make to a request for an IEE:
1. Agree to fund the IEE
2. File Due Process against you to establish the appropriateness of their evaluation.
So, what do you do if you get a response that says “Sorry”, we will not fund it.
You have two choices. You can fund it and then file a complaint and/or due process against the district for failing to comply with one of the two options that they legally could have made and seek reimbursement of what you paid or you can file the complaint/due process and seek a ruling that they must fund it without first funding it yourself. If you do the latter, the judge COULD hold that while the district violated the procedural requirements of the IDEA (because they only had two choices in their response), that they were justified in their response and, you are not prejudiced because you did not act by funding it yourself. If you fund it yourself, the district’s procedural error would have already resulted in your substantive prejudice because you acted and funded the IEE. You may be in a better position to recoup your expense under that scenario, and, candidly, the full amount you spend even if the district would have tried to cap the amount for an IEE. This also prevents the significant delay in filing a due process, waiting until it is resolved, and THEN getting an IEE.
Consider the case of Parents v. Fullerton, OAH 201106318 (Calif. January 30, 2012). In that case, a district responded to the parent’s request for an IEE with a request to re-assess the student. In Fullergon, the school assessed the child initially and reported on its assessment in March of 2010. Parent did not then ask for an IEE but did raise questions about the assessment. By September, parent had concerns about the student’s placement and asked for an IEP meeting at which she asked for an IEE. The district responded that standardized tests could not be repeated until 12 months had elapsed since the previous assessment. This information was not fully accurate as an independent evaluator could choose different assessments or alternative forms of the same assessment. In May of 2011 (more than a year after the original assessment), after the annual review of student’s IEP, parents again asked for an IEE, stating that they disagreed with the March 2010 assessment. The district responded with a letter refusing the IEE and claiming that it wanted to reassess the student first. The administrative law judge held that this response was procedurally improper as the district could only fund the IEE or file Due Process. The judge held that the parent’s request for an IEE was timely, that the parent had up to two years to request an IEE, that parent had formally disagreed with the assessment and the district’s only response was to fund it or to file due process. As the district had done neither, the district was held responsible for the payment of the full amount that parent had expended for the IEE they commissioned, including the cost to bring the independent evaluator to the IEP meeting. The total amount was in excess of $6,000.00, substantially more than I am sure the district would have originally authorized had it properly responded to the IEE request.
One caveat to think about is what about the situation where the district did not assess in a specific area and then the parent wants to request an IEE to assess in the area left out. In that scenario, what if the district responds by saying that it gets to assess first? Well, depending upon the situation, this might be a non-conforming response that would violate the procedural rights of the parent. Consider Grapevine Colleyville ISD, 28 IDELR 1276 (Tex. SEA 1998). There, the hearing officer ordered reimbursement for medical evaluations where the school’s evaluation failed to address adequately a potential diagnosis and area of need. If the district had a chance to assess and did not, your request for an IEE would still be well taken as the district has an OBLIGATION to assess in all areas of disability. That being said, if the district did do a comprehensive psycho-educational assessment and the parent disagrees and the parent asks for a neuropsychological IEE, the district could argue that it has not yet completed that type of assessment. The reality is that this is often simply a mistake in semantics. If the district did a comprehensive psycho-educational evaluation with a school psychologist, and the parent requests an IEE, the parent can retain a more qualified evaluator (e.g. a psychologist with neuropsychological credentials) to do an IEE and that IEE can include different types of testing (e.g. neuropsychological tests). As long as your chosen evaluator has the minimum requirements for a school psychologist, they cannot limit you to a school psychologist; you can choose a higher qualified psychologist. Piedmont City USD v. Student, OAH No. 2008030045 (California 2008). The problem is that you might have given them too much information by telling them you intended on doing a neuropsychological evaluation (which often costs a lot more than a psycho-educational evaluation and would be approved at a higher rate). To avoid the delay of a response that requests the right of first assessment in a new discipline, you can simply ask for an IEE and choose a better qualified examiner. They may not give you as much money as you want/need to fund the IEE but it might be reasonable to just pay the difference, expedite the more comprehensive evaluation from the more qualified evaluator and present it to the team. It all depends on why you are requesting the IEE and the speed with which you need/want to get it done. This latter option is what the parent did in the Fullerton case above and retained a psychologist with more credentials who did a complete neuropsychological evaluation.
So, how many IEEs should you request? Many parents think that if the district has done three, they should ask for three. Again, think about what you really need/want. But, if the psycho-educational evaluation included an assessment by the psychologist and an academic assessment by a special education teacher, you might want to consider requesting both a psychological assessment and an academic assessment so that you can increase the budget that they might give you. I work with several psychologists who have no problem if a learning center runs a reading assessment or other academic assessment in order to save money by increasing the available cap. This is simply a thought depending on who you are working with.
Many districts will respond by allowing the IEE but will impose conditions on the parent. The Office of Special Education programs has approved some limits, provided that they do NOT interfere with the parents’ right to obtain an IEE. What conditions/limits might a district seek to impose? Often, they require certain qualifications for the assessor. There might be geographical limits, prohibiting you from going outside the city limits, there might be requirements that the assessor must observe the student and most significantly, there is usually a cost cap in most IEE responses. Many districts will provide a list of available providers that will meet the district requirements and who they think will do the IEE for the cost cap.
So, are these types of conditions/limitations OK? The answer is “it depends”. OSEP has held that providing lists of names is not a problem as it simply is letting a parent know who might be available. OSEP has held that a district list of evaluators is not an impermissible limitation provided that the district allows parents the opportunity to select an evaluator who is not on the list but meets the district criteria. Letter to Parker, 41 IDELR 155 (2004). If the district insists that you use one of the names on the list that would interfere with the right of the parent. In that circumstance, the parent can request the list of qualifications and then choose anyone who has adequate qualifications. You can also choose someone more qualified as the Piedmont case above showed (allowing a licensed clinical psychologist when the school district sought to limit the assessor to a school psychologist). I have yet to see a case yet where the district did a behavioral assessment with a psychologist and the parent wanted to use a BCBA. I think a BCBA is more knowledgeable on behavior issues but as there are now a handful of psychologists with BCBA certification; you can bypass that problem by simply selecting one of those providers.
What about requiring the parent to pay first? I have not seen that in practice but if a district asked for that, I think it would be objectionable and interfere with the parents’ right to obtain an IEE at public expenses. Geographic limits have been found unreasonable (30 miles) in Dover City Schools, 57 IDELR 208 (SEA Ohio 2011). If the parent is willing to pay mileage and the IEE assessor is willing to appear at an IEP meeting telephonically or via SKYPE, there should be no valid basis for a district to insist that a parent stay within a certain geographic areas.
I have not yet seen any cases on requiring that the IEE evaluator observe the student in his or her placement and whether such a limitation is appropriate. In California, there are many, many cases, however, where the Administrative Law Judge discredits an outside expert’s opinion because that expert had not observed the student and the district’s psychologist had. So, my theory is that if you are doing an IEE and want it to carry some weight, you should ask your expert to observe in most circumstances, and try to fight to get that funded as part of the IEE. The district is required to allow your outside expert the same access that they had. See Letter to Wessels, 16 EHLR 735 (OSEPp 1989) (If district observed child in its assessment or had the right to, IEE expert can also observe).
Other limitations that have been found to restrict the parent’s right to an IEE include a prohibition against using certain private schools and advocacy organizations, including those advocating a particularly instructional approach, prohibiting experts who usually work with parents (as opposed to with school districts), requiring experience in public school settings and requiring state education department licensure. Letter to Petska, 35 IDELR 191 (OSEP 2001). Additionally, a district cannot require advance consultation and clearance as a condition for payment. Letter to Bluhm, EHLR 211:227 (OSEP 1980).
A more recent trend is districts making conditions upon the independent assessor that are contrary to his or her practices or, even their code of ethics. One recent IEE approval mandated that the independent assessor provide copies of all test protocols and answers to the district with the evaluation report as a condition to payment. Many evaluators believe that this is inconsistent with their copyright obligations to the test manufacturer. Test protocols commonly refer to written instructions on how a test must be administered and the questions. Generally these test protocols are original creations of independent authors and/or organizations. Therefore, they may be protected by the U.S. Copyright Act of 1976, the Digital Millennium Copyright Act of 1988, as well as other State, Federal, and international acts and conventions. If a given test protocol is copyrighted, it may not be reproduced, transmitted, distributed, publicly displayed, nor may a derivative work be created there from, without express permission from the copyright owner, unless such use is allowed under the Fair Use Doctrine. In many instances, the district will have access to the test protocols if it uses the same tests in its evaluations that the independent evaluator uses. If the district is not familiar with the test and needs to review the test protocols to determine if the IEE meets agency criteria, it can require that the independent evaluator provide an explanation of the test protocols. OSEP has concluded that “It is the independent evaluator’s obligation to assess his/her rights in light of the intended use and satisfy any and all use restrictions, including, but not limited to those boundaries set forth in copyright and trademark law.” See redacted letter dated January 4, 2010. A California district court has held that a parent has an absolute right to receive test protocols and that disclosure of the protocols does fall within the “fair use” doctrine. Newport-Mesa Unified Sch. District v. State of California Department of Education, 43 IDELR 161 (C.D. Calif. 2005..
While a parent has a right to the protocols, does a parent have to sign that right away in an IEE? That has not yet been conclusively decided. One could argue that the federal regulations only allow the districts to impose restrictions as to geographical limits and qualifications. Others could argue that without the underlying support, the opinions are not worthy of being credited. My theory is that if the independent evaluator has done a good job, providing all of the information to the district does not harm the child and, if the parent does not, the district has a built in defense to accepting the evaluator’s recommendations (e.g. “we couldn’t see his underlying information so we could not determine if his conclusions were valid”). My thought is that whenever a parent is going to request an IEE, the parent should FIRST request comprehensive school records from the evaluation with which the parent disagrees, including all test protocols. If the district refuses to produce them, then they should not be held to complain if the private evaluator also wants to keep the test protocols confidential. I believe the better practice is for the school district to “pony up” the protocols, for the IEE assessor to review them to see if mistakes were made (a very helpful finding and you would be surprised how often district employees score tests incorrectly), and for the IEE provider to share his or her protocols with the district. Just as a district has an obligation of good faith to the parents, that obligation runs both ways.
The most prevalent limitation imposed by districts is cost. OSEP has allowed district to set maximum allowable charges if the amount approved allows a choice among qualified professionals by targeting unreasonably excessive fees and the district allows exceptions for justified unique circumstances. Letter to Anonymous, 22 IDELR 637 (OSEP 1994) Letter to Fields, EHLR 213:259 (OSERS 1989). So, how much is a legitimate attempt to control excessive costs vs. price setting? How much is enough depends on your location, the type of IEE, the child (in terms of how difficult he/she is to assess), etc. The Dover case above found a $1,000 limitation unreasonable. The reality is that the district always has one person who will do an IEE on the cheap and it is your job to show how unreasonable that limitation is.
So, what do you do if they give you a response with limits? Well, first, call each person on their list and first ask if they have any relationship with a school district. Many names on IEE lists are of psychologists who are employed by school districts and they cover their buddy-school district IEEs. Such a person is NOT independent. Also ask, however, what their charge is for an IEE and what it includes? (e.g. number of testing hours, number of tests, school observations, interview, records review, attendance at IEP meeting). The district does NOT have to pay to have the independent evaluator attend the IEP meeting. Under 34 CFR §300.321(a)(5), the IEP team must include an individual who can interpret the instructional implications of evaluation results. This individual does not have to be the person who conducted the evaluation. It may be helpful for members of the IEP Team to speak with the independent examiner for clarifications, background information or to have other conversations about the information contained in the evaluation. However, 34 CFR §300.502(c) does not require that the independent examiner be present at the meeting where the results of the IEE are considered and while the district could request (and pay for) the examiner’s participation, such participation cannot be required as a condition of considering the results of the evaluation in any decision made with respect to the provision of FAPE to the child. The reality is that the parent wants to make sure that the independent evaluator is present to discuss his or her results and needs to either insure that the amount funded by the district is adequate to pay for that or the parent should pay for that attendance personally.
What will you find if you start making calls to the providers on the district list? On a recent list that was
provided by a large school district in San Diego, of the 5 psychologists on the list, two did not answer the phone, two were affiliated with school districts, and the three who actually responded, indicated that while they would do the evaluation for the amount, it would be like having one hand tied behind the back while wearing a blindfold. When we got that information, I got three price quotes from reputable evaluators in the community. I made sure to get “apples to apples” comparisons. I created a minimum list of requirements – e.g. review of records, interview of parent/child, interview of teacher, observation, 4 hours of testing, scoring, report writing, IEP meeting. Once you gather this type of data, then send the district a letter advising the district of what you found (e.g. how ridiculous and unreasonable their list, your list, and who you will retain, what the charge is for the IEE and what it will entail (e.g. will it include an observation, IEP attendance, testing, etc.) Advise the district that you will set the IEE in two weeks in order to give the district an opportunity to object via the filing of a due process. In short, you put the onus of objection upon the district to file due process to object to your evaluator or the price that you were quoted.
What will they do? They may simply offer to increase the price cap enough that you agree to do the evaluation and pay the difference. Maybe they will file due process (although I have not seen that yet). The point here is that the Office of Special Education Programs (OSEP) says that the remedy for a district if they disagree with your chosen person, his qualifications, his location, or his price is to file due process and show that their limitations are not unreasonable. In the last case that I had, I got three “quotes” from three different evaluators, each highly qualified, and each cost significantly more than the paltry amount that was approved. The response was the district just increased the limit.
So, what should your letter to the district say? Stay tuned tomorrow for a sample letter.