Did your school district provide you with a non-compliant answer to a request for an IEE? Did it unreasonably interfere with your ability to get a truly "independent" evaluation? Did it fail to provide you with the necessary information to enable you to obtain an IEE? Read on to find out how the California Department of Education recently "dinged" San Diego Unified School District when it failed in its responsibilities to the parent in connection with an IEE request.
In the highlighted case, Student had autism and was turning 16. At his annual/triennial IEP meeting, the district reviewed the assessments it had conducted. It conducted NO assessments for transition (e.g. vocational skills, adaptive skills, self-advocacy skills, etc) even though it would be writing Student's first Individual Transition Plan (ITP). The other assessments conducted were largely a review of records because Student was very low functioning. It appeared that the district had intentionally failed to do any transition assessments because the student was so low functioning that the district presumably assumed that the Student would likely transition at age 22 to a day program, sheltered workshop, and eventually to a group home. He could not count to 5, had little to no language, and significant behavior.
So, the district did nothing.
At the IEP meeting, I listened to the reports and when the district was done (and I confirmed they were done), I then formally "disagreed"with its transition assessment (or lack thereof) and requested a transition assessment - IEE on behalf of the parent. I was fairly confident that the district would not reject the request because federal law mandates that any transition plan be based upon "age appropriate transition assessments". The district has only two responses to a request for an IEE: fund it or file due process and prove up the appropriateness of its own assessment. As the district had not assessed the student at all, I figured they would approve the IEE. And the district did.
The district wrote to me and approved the IEE. The district also approved a fee for the IEE. The total fee approved was $350.00.
You read that right. They approved only $350.00.
Now, in the real world, there is no way to get an assessment for $350.00. I knew this. I also knew that while districts can set maximum allowable fees, such caps are only to prevent "unreasonably excessive fees" (See my prior blog post entitled "What Limits Can A District Placed on an IEE"). A fee cap cannot unreasonably interfere with a parent's right to obtain an IEE. The way most districts address fees is to send a list of providers from whom the district has obtained agreement to conduct an IEE for the set price. The district also sends the district criteria (e.g. qualifications of the professional) so the parent has the right to obtain anyone with those qualifications who will do the IEE for the stated price.
In the case under review, San Diego Unified did neither. They did not send a list of professionals or the criteria necessary to conduct a transition assessment. I went on line and checked out their policies and they actually had an IEE policy that complied with the IDEA. The district policy stated:
The SDUSD policy and procedures manual specifically states that the case manager must provide the parent with "information about where [an IEE] may be obtained and the criteria by which it must be conducted" (Procedure manual page 3-19). The manual goes on to state that the case manager must provide the parents with two forms: the District's IEE policy and a List of Assessors who meet the District's Criteria for IEEs (Procedure manual page 3-20).
So, I sent a letter to the district stating that the cap was unreasonable, that the failure to provide a list of professionals who would do the assessment for that amount or the criteria for the IEE demonstrated that there was no professional who would do the assessment for that amount. I cited the above policy as well as the federal regulations for IEEs:
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.
I explained to the district that the $350.00 cap was inhibiting the ability of parent to obtain an IEE at public expense as there was no list of professionals who were qualified to do it for $350.00. Moreover, the criteria that the district required were not included which, had the district complied with its own policies, would have mandated a list of names of competent, independent people who could do the evaluation for the approved cost. Finally, I told the district that its limitations were impeding parent?s right to obtain an IEE as there was no one that I was aware of who would do an evaluation for $350.00.
I then provided the district with the name of a professional we were choosing to conduct the IEE, provided his curriculum vitae which demonstrated that he was more than qualified to do a transition assessment and his fees ($175.00 an hour). I advised the district that the expert estimated that it would take 23 to 28 hours to complete the IEE, write the report and participate in the IEP meeting to discuss it but that was simply an estimate and the total hours could not be capped. If you do the math, I was telling the district that the fee would be between $4,025.00 and $4,900.00. I concluded my letter as follows:
Insofar as SDUSD has failed to provide us with any list of qualified transition assessors, much less one who can do a comprehensive assessment for $350.00, we are requesting approval of an IEE with Dr. [Expert] at his estimated cost of $175.00 an hour for his estimated 23-28 hour IEE. Mrs. [Parent] will drive [Student] to meet with Dr. [Expert] and allow him to conduct the assessment. Dr. [Expert] can communicate with [Student?s] teachers and others as he deems necessary and attend the IEP meeting to review his report by telephone.
The expert was out of county. Typically, that is a deal breaker for an IEE but, because the district had failed to provide anyone who could provide the IEE for $350.00, much less anyone in the county, I decided to get the best expert I could find. And, he was 2 hours away. I did not ask for transportation reimbursement.
The district responded to my letter but failed to respond to the request to fund the designated expert. Instead, the district responded by adjusting the rate it had approved to $175.00 an hour (the rate I had requested) but only for 7 hours which the district broke down as 4 hours to assess, 2 hours to write the report and 1 hour to present the findings at an IEP meeting. They still did not include a list of providers or the criteria.
I responded to the district by stating that its time estimates were unreasonable and interfering with the ability of parent to obtain an IEE at public expense. I again objected to the district?s failure to comply with its own policies when they failed to provide a list of qualified evaluators. I objected to the breakdown of IEE time/costs as it is up to the assessor to determine what needs to be done but it would obviously include a review of records, interviews with teachers, related service providers, parents, assessment, etc. I explained that the last few IEE reports I had for transition assessments were 20+ pages and preparing a 20 page report in 2 hours as had been suggested was unrealistic and legally impermissible.
The district did not respond to my final letter.
So, I filed a CDE complaint (on behalf of the parent but I signed it so CDE would call me to interview). In the complaint, I stated that San Diego Unified had failed to fund the IEE, had failed to provide a list of providers who could provide an IEE, unreasonably capped the fees for the IEE and in short, interfered with the parent's right to obtain the IEE.
This complaint relates to the district's failure to provide a reasonable and substantively appropriate response "without undue delay" to the March 13, 2014 request for IEE and the follow up request to fund an IEE with Dr. [Expert] which was made on March 31, 2014. This complaint further alleges that the financial limitations imposed by the district are unreasonable, that there is no expert known much less available who is independent, competent and EXPERIENCED in transition assessments, to conduct an assessment for the unrealistic and unreasonable costs "approved" by the district.
We request a decision by CDE directing the district to contract with Dr. [Expert] and publicly pay for the IEE he will conduct at $175.00 an hour for however many hours it takes for the evaluation to be completed. The district apparently agrees that $175.00 an hour is a reasonable hourly rate for an outside evaluator and there is no statutory authority to limit the number of hours that an assessor can take. Whatever it takes, it will take. This student is non-verbal, speaks through an augmentative communication device, can only follow one step directions and assessing him will be VERY difficult.
Undersigned could find NO case law authority to support limiting the number of hours for an IEE and asserts that it is an unreasonable restriction that is not authorized by law. Further, we assert that the restriction on the number of hours approved/allowed for the IEE is a condition being imposed by the district that is not authorized by 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. SDUSD?s seven hour maximum allowed for an IEE is inhibiting parent's right to obtain an independent IEE that is sufficiently comprehensive to provide relevant information.
The district has agreed to fund an IEE and parent has identified a qualified evaluator who charges a reasonable hourly rate. The district should be ordered to issue a purchase order to Dr. [Expert] to cover the costs of his IEE.
After I filed the complaint, I got an email from the district's program manager telling me that he had found someone - [Ms. Designated Hitter] to do the assessment. He asked me to contact him so that the arrangements could be made to complete the assessment.
I emailed the program manager back that an IEE is an "independent" evaluation which means that the parent gets to choose the evaluator, not the district. I advised that we would wait for the CDE decision.
The district then issued a prior written notice approving the IEE for $1,225.00 (which was 7 hours at $175.00). They still provided no list of criteria or a list of providers who were willing to do a transition IEE for that amount.
CDE found that the district had not complied with the federal regulations because it had neither "ensured that an IEE was provided at public expense or demonstrated in a due process hearing that the proposed IEE does not meet agency criteria" (e.g. demonstrated that the IEE with Dr. Expert would not meet the district criteria).
So, the district was ordered to fund the IEE with my expert for up to 28 hours at $175.00 an hour.
The lesson I learned in this case is NEVER to talk global fees. Instead, talk in terms of hourly fees. The practice pointer is to request the IEE and even if they give you a list of providers and a cap, if you want someone else and his or her hourly rate is reasonable, respond by notifying the district that you have selected Dr. Expert to conduct the IEE, provide Dr. Expert's qualifications and his hourly rate and request a purchase order for Dr. Expert to conduct the evaluation at his hourly rate for however many hours it takes to conduct the evaluation. There is no legal authorization that I could find to allow a district to restrict the number of hours an expert takes. If you provide the name of a qualified expert to conduct the IEE, the district ONLY has two choices: to agree to fund it or to file due process in order to establish that the chosen expert does not meet district criteria. If the expert is qualified and the hourly rate is reasonable, how will they be able to establish that the expert does NOT meet the criteria? If I did this again, I would NOT estimate how many hours an IEE will take in my initial letters - simply the hourly rate.
Remember, if the district responds to your request by saying "No", that is a legally non-compliant response. The district ONLY gets two response: "Yes" or "Here is a due process". The Arizona Department of Education has also confirmed that districts can ONLY respond with one of two responses.
In short, change the "negotiation" parameters. It is not about whether $800.00 or $1,500 is a reasonable amount. It is whether Dr. X is qualified and has a reasonably hourly rate. You do not get to dictate how many hours their psychologist took to assess your child so why do they get to dictate how many hours an independent psychologist gets to assess.
So, try this technique and see if it will work for you!