Sample Parental Response to District IEE Limitations
( Part four of Amy’s four part series on IEEs)
September 21, 2012
Yesterday, I told you some of the rules that districts have to follow in responding to a request for an IEE. Yet, many do not follow those rules because they know that parents do not know their rights or how to respond. Obviously, if you cannot advance the funds for an IEE, you are stuck with working with the district or immediately filing a state complaint or due process to seek vindication of your rights and advance funding by the district. That may or may not get you all that you want because a court may allow some economic limitations or may approve what the district did. If you can afford to advance the funding yourself, the better option is to put the district on notice as to what you are doing, and shift the burden to them to establish that what you are suggesting is unreasonable. This is the process suggested by the Office of Special Education Procedures (OSEP). Here is a sample letter.
Recently my daughter’s IEP team did an assessment (psychological and academic) with which I disagreed. I requested an independent educational evaluation in psychology and academics, the two areas with which I disagreed. The district approved both IEEs but authorized only $1,500 for the psychology evaluation and $500 for the academic evaluation. The district provided a list of evaluators it deemed suitable and a list of requirements it insisted upon for any IEE, including observation of student and presentation of report to the IEP team.
I attempted to contact the evaluators on the district list. Importantly, none are even located in the city of San Diego. They work in Oceanside, Escondido, Vista, and Solana Beach. Dr. A and Dr. B both work for a school district and are thus anything other than “independent”. While Dr. B agreed he could do an evaluation for $1,500, he said it would have to be “limited”. Regardless of the propriety of recommending a school district employee for an independent evaluation, under no circumstances can your price restriction limit the ability of a parent to obtain a complete and full IEE with a qualified person. Dr. C, the next on your list, confirmed that districts limit the number of hours by their price limitation which has the effect of “tying one hand behind the back with one eye closed”. She ultimately advised that she was too busy to do an evaluation in any event. Dr. D, your final evaluator, is affiliated in some way with Dr. E (she is contacted through his office and Dr. E is currently identified as the interim director of ABC school district.) I did speak with Dr. E, who is also located outside the city of San Diego, and asked him directly if he was affiliated with any district and he denied it even though SDCOE plainly lists him as the interim director of a school district. This obviously caused some significant concern about his objectivity and credibility or anyone working with him. He confirmed, however, that the amount “approved” by districts was unreasonable to do a comprehensive evaluation. While he said that he could do an evaluation for the combined $2,000 amount that you are offering for both the psychological and academic IEEs, even though it would be inadequate, the fact that he misrepresented his affiliation with a school district and is clearly “friendly” to school districts caused me not to be comforted by his concession. Parents are entitled to an objective, non- partisan, independent, qualified professional, not affiliated with any school district in any way, in the City of San Diego, who can do a comprehensive evaluation, including the observation and IEP attendance that your district requires. That is impossible with the restrictive amount you have set not as a guideline but as an unreasonable maximum.
I have communicated with three San Diego psychologists, each of whom has done IEEs in San Diego. The estimate from Dr. F for an IEE was $2,475.00 which included one observation of student, 4 hours of testing, scoring, record review, intake interview, report preparation and presentation to IEP team. If more testing was needed, the cost would increase. Dr. G provided an estimate of $1,750.00 which included seven hours of testing, scoring, observation, interview, and report writing. It did NOT include attendance/presentation at an IEP meeting. As that would likely take an additional 3-4 hours, at Dr. G’s hourly rate of $175.00 an hour, the total estimate would be between $2,275-$2,450.00. Dr. H was also contacted. His estimate was $2,975 to $4,900. This estimate included a diagnostic interview, review of records, school observation (plus travel), a minimum of 8 hours of testing, including cognitive testing, processing assessments, attention and impulse control, working memory testing, emotional/behavioral assessment, scoring service and materials charges, scoring and report writing. It did NOT include IEP team attendance. Dr. H advised that when he was previously employed by DEF district, he did a district study (this was in the 1980’s) that found that the average length of time to complete the psychological part of an evaluation was 8-11 hours, not including travel, materials or IEP attendance. At current typical clinical psychologist rates of $175.00 an hour, this would be a cost that already was well in excess of your predetermined maximum rate of $1,500.00.
Each of these psychologists was told that the academic component of testing would be done by an academic assessor separately. These estimates were simply for the psychological component of the IEE. If any have to do a Weschler Individual Achievement Test - WIAT (or similar comprehensive academic achievement test) to compare with the one Woodcock Johnson Academic test done by the district, that would add another two hours of testing and reporting time. . Based on the above, it is my belief that a comprehensive, reasonable, and reliable IEE can only be done by a licensed and qualified psychologist in the city of San Diego with your mandated parameters for a minimum of $2,750-$3,000. This is only a minimum and the reality is that until any psychologist starts evaluating a student, can they determine which tests NEED to be done, which questions NEED to be asked, and who to interview, etc. In addition, because this child is in middle school, any observation may need to be more extensive to see the child in each of her environments where her learning may be impacted.
In addition, I contacted J&K Learning Center to determine the cost of an academic assessment. Just to do targeted academic tests for reading and writing (GORT, IRI or QRI, TOWL, LAC or CTOPP, WADE, Symbol Imagery), they are estimating $500.00 ($95.00 an hour for an estimated 4 hours (approximate) of testing and an additional hour (approximate) to score and report. This would not allow any money for a WIAT or similar comprehensive academic test, which will have to be done by the psychologist. This would also NOT include any observation time or IEP time. It was our intent, in requesting the academic assessment, to provide the data to the psychologist for evaluation as was done with the triennial evaluation at school. If you intended that BOTH the psychological and academic evaluators needed to observe and participate in an IEP meeting, an additional $400.00-$500.00 of money will be necessary. If you are going to refuse to fund the $500.00 unless the academic assessor also observes and participates in an IEP, the amount you have “approved” as the district maximum is unreasonable and inhibiting parent’s ability to obtain an IEE.
The federal regulations implementing the IDEA provide the following:
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.
Except for the criteria described [above]…, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
34 C.F.R. Section 300.502
The IDEA does NOT allow districts to restrict the parent’s right to an IEE. While regulations allow the district to identify the qualifications of the evaluator and the location of the evaluation, no other restrictions can be made if they interfere with the parent’s right to obtain an IEE. Your price maximums are inhibiting parents’ right to obtain an independent IEE that is sufficiently comprehensive to provide relevant information and also comply with your other restrictions (mandating an observation, a report, and presentation to an IEP team). While OSEP letters speak about the ability of districts to identify cost guidelines, the only permissible rationale for such criteria is to prevent excessive costs. None of the estimated hourly fees are excessive. If you were to contact your own school psychologists and ask how many hours they tested the student, observed the student, reviewed the student’s records, spoke to student, parents, teachers, wrote their report, etc., and tallied up the hours, I suspect you will find that they all spend as many or more hours than are currently estimated by each of the three San Diego psychologists contacted. As their hourly fees are within the range of other similarly situated private practitioners, your cost restriction is unreasonable.
Your cost restrictions are limiting parent’s right to an IEE. This is to advise you that I will be selecting one of the above evaluators and will expect reimbursement from the district for the full cost of the evaluation conducted, whatever it may be. I will separately contract with J&K Learning Center to do an academic assessment only, excluding a WIAT, and submit those scores to the psychologist for consideration. The only observation will be done by the psychologist who will also be the one to attend the IEP. I will contract with these evaluators no earlier than 14 days after the date of this letter in order to give you an opportunity to file due process to establish that the estimated costs do not meet your criteria and that your criteria are reasonable. The United States Department of Education has identified an impartial hearing – rather than unilateral refusal of reimbursement- as the proper district recourse if you think that the expenses to be incurred in an IEE are unreasonable. See Letter to Petska, 35 IDELR 191 (OSEP 2001); Letter to Wilson, 16 EHLR 83 (OSEP 1989); Letter to Fields, EHLR 213 (OSERS 1989).
If you have any questions, you can contact me at the address/email/phone number above.
The number one mistake I see with IEEs is requesting one when you don’t really want/need one and when asking for one will only delay the inevitable and not get you any appreciable benefit. If you disagree with the placement and are prepared to unilaterally place the child in a private school and file for due process to try to prove that the district placement was not appropriate, asking for an IEE simply gives the district a minimum of 60 days to gather data on how well they think your child is doing. While the unilateral removal and placement of a student is a course of action of last resort, and should only be done with the assistance of a special education consultant/advocate/attorney after a full review of the records, if that is the chosen course, what good will an IEE do for you? What harm could it cause you with the attendant delay? But, if an IEE is an appropriate step to ask for, do not allow districts to bully and abuse you with their unreasonable limitations.
Good luck on all your IEE requests.
 Each psychologist was estimating the need to do one cognitive (IQ) test and targeted testing on the various processing systems (e.g. visual, auditory, and perceptual) and memory. Dr. H included social and emotional while the others did not. They were told that targeted academic testing would be done by an academic assessor. It was assumed, when contacting each psychologist that a comprehensive academic test, such as the WIAT, would be done by the academic assessor. Only after the psychological estimates were received, did I learn that Banyan Tree does not have the WIAT and could not do it within the restrictive limits set by the district. As such, any WIAT done will need to be done by the psychologist and their estimates will each need to be increased by an estimated 90 minutes of testing time and additional scoring/report writing time.
November 1, 2013
IQ Testing: Should I Say No?
January 11, 2012
What's in a Label? When a Rose By Any Other Name May Not Be a Rose.