Season 3: Episode 12: Your Top IEE Questions Answered


You probably know that parents of students with special education needs are entitled to an Independent Educational Evaluation if they disagree with an evaluation conducted by the school district.  But what happens if a parent’s proposed IEE is expensive or far away or is conducted by unqualified individuals?  Does the school still need to fund that kind of request? How long after an evaluation can a parent request an IEE and does she/he need to offer any kind of explanation for her dissatisfaction with the district’s assessments? Join Lisa Woloszynek, Miriam Pearlmutter, and John Moenk, a law clerk and former school administrator, in exploring these questions as well as others we frequently receive about IEEs.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter | Haverfield in Cleveland, Ohio, and every few weeks, we get together and we talk about the latest legal developments in education law, cases, and regulations, and laws, and developments that are relevant to school board members, administrators, teachers, anybody who works in our school districts.

Lisa: Yes. Today, we’re going to continue our conversations about students with special education needs and we are going to look very specifically at our top independent educational evaluation questions that we get from districts about when those are required, what they need to look like, and things like that. We have John Mink joining us again, one of our law clerks and a third-year law student with a background in special education and as a school administrator. Thank you for joining us again.

Miriam: Welcome back.

John: Glad to be back.

Miriam: I’m sure most of our audience is familiar with IEEs, independent educational evaluations, but I’ll just run through this concept quickly. Parents of students who have been evaluated for special education sometimes disagree with the district, with the school district about that evaluation. They’re sometimes displeased with the results.

Maybe their child did not qualify and they disagree, or maybe the parents might disagree about the battery of tests completed, or some other assessments should have been done or shouldn’t have been done. For whatever reason, they disagree with their child’s evaluation, and the law says that those parents are entitled to one independent evaluation paid for by the school district. A separate person, or organization, or company conducts an evaluation and the district has to pay for it. That’s called an IEE, an independent educational evaluation.

Lisa: Right. As you can imagine, these requests can be very contentious. From the beginning, you’re in a conflict, the parents disagreeing with your evaluation, so we’re already in a contentious situation. There generally are a lot of emotions running there. We have a lot of questions come up. One about when are these required, “Do I really have to all the time just because a parent wants one?” Let’s dive into some of those specific questions.

John: The first question is whether parents can request an IEE ahead of an evaluation.

Miriam: That’s a good question. We get that sometimes. The parent will say, “You know what? I don’t like this team and I don’t like this district. I wish my kid was somewhere else anyway. I just want somebody else to do this evaluation. I don’t like the school psychologist. I want somebody else to do it.” Sometimes we get that kind of question, the parent who’s in general dissatisfied with her child’s team.

Sometimes we also get that question from somebody who moved in recently. Let’s say a parent moves into a district and there’s an evaluation from some other district that the parent just moved from, but now the mom is asking you to pay for an evaluation, outside an IEE, an independent educational evaluation, because she’s not happy with something that the other district did.

The answer to both of those situations is no. The school district typically will not fund an IEE unless the school district has had a chance to first conduct their own evaluation.

Lisa: Right. To clarify, for example, a student who has not yet been identified. A parent can’t just say, “I don’t trust the district to do it, so I want you to pay somebody else to conduct the evaluation. Because I have a right to an IEE, you need to fund this.” The district needs to conduct their own evaluation first, and then that provision and that parent right kicks in.

Miriam: That’s right.

John: What about a parent’s reasoning or explanation for why they don’t like an evaluation? Do they have to explain themselves or provide rationale behind this?

Lisa: That’s a really good question. I know a lot of districts really want to know, “Okay, what didn’t you agree with in this evaluation?” Or, “You said you agreed at the meeting and now a couple of months later, you’re saying you disagree. Can you tell me why?” It is okay for the district to ask the parent those questions of, “What don’t you agree with?” But the parent doesn’t have to give any explanation. Really, the key component is a parent just expressing that they don’t agree with it generally and globally, and that’s enough to kick in that right to have it funded by the district.

John: Okay. Can a parent just bring this up whenever, after the evaluation, or is there a statute of limitations?

Miriam: That’s another good question. The special education laws and regulations don’t really establish a specific deadline, but typically, the cutoff by the Department of Education has been about two years, a little over. If a parent is asking for an IEE more than two years after the district has completed its evaluation, that’s too long. I think that that makes sense because we know that school districts are obligated to conduct a reevaluation every three years. If you’re over two years from the last evaluation, it doesn’t make sense for the parent to be entitled to a district funded outside independent educational evaluation.

Lisa: Yes. Certainly, I think that two years is in alignment with our two-year statute of limitations for due process complaints, so the period of time a parent can complain about the evaluation through that process. I think that two years makes sense. We also have situations where maybe it’s two and a half years.

You had mentioned we’re on three-year reevaluation cycles, so a district is obligated to conduct their own every three years. If one is requested, say, two and a half years out and you’re past that, then you don’t have to necessarily agree to complete that IEE and fund it. What I would generally recommend- and you’re going to want to be in contact with your counsel because this can get nuanced, is looking at, “Okay, we need to do our evaluation first, and then you’re entitled to an IEE.”

You know from the onset. Most parents then are going to request that. You know that, but you really are going to want to make sure you have the most current information as a district through your evaluation and have an opportunity to do that. When you get into beyond the statute of limitations, you really are going to want to be careful and invoke some counsel from your legal counsel as far as how to do that and how to navigate that.

Miriam: I think that’s very important, to talk to your attorneys when you are about to tell a parent, “No, we’re not going to fund your IEE request.” I think that’s critical to be in touch with your attorneys. Here’s why. Typically, in this statute, in this provision, typically, the parent does get the IEE funded because, the way the law is written, if the district does not want to fund the IEE, the other option for the district is to file due process, which is unusual.

In special education law, most of the time, it’s the parent who’s dissatisfied and the parent who’s filing a due process complaint with the state alleging that the district did something wrong, didn’t educate their child, here, the IEE regulations create a situation where the district is the one bearing the burden to defend the evaluation.

If you’re a school district and you want to tell a parent, “No, we’re not going to fund your IEE requests for this reason or that reason,” most of the time, you have to follow that up with right away filing a due process complaint to say, “Our evaluation was great, and we don’t need to fund an IEE in addition to having done our evaluation. We don’t need to do that.”

Those situations where you’re not going to file a due process complaint and you’re still going to deny the parent’s request are unusual, and they’re very rare. That’s why I would say talk to your attorney. If you’re in the situation of denying a parent request for an IEE, you’re on the brink of filing due process possibly, so speak to your counsel before you do that.

Lisa: That’s a really important distinction, because the parent has a right to this district-funded IEE, there is a mechanism, and that mechanism is a due process complaint for the district to say, “No, we’re not going to provide that.” Very often, districts are not going to want to go through the time expense process of doing that because then they are the individual or party that is responsible for defending that evaluation.

Miriam: Very costly, very expensive to go to due process.

Lisa: Right, and you’re defining, “This is an appropriate evaluation.” More times than not, we do see districts just agree to fund. It’s almost the path of least resistance, a little less contentious. Then, obviously, you’re getting that IEE and reviewing the results.

John: Just to double-check. District gets an IEE request. Pretty much their options are funded or go to due process.

Lisa: Generally, yes.

Miriam: Yes. Some districts try to just get out of that. They don’t like those two options, so sometimes we’ll see districts that try to say, “If you don’t like it, we can redo it. Or if there’s some other assessments that you wanted, mom, we can have our school psychologists do those.” That’s not an appropriate response. The appropriate response is to say, “Yes, we will fund this IEE,” or, “No, we’re going to go to due process, and I’m calling my attorney right now.” [laughs]

Lisa: To the other end of that too, this is where it gets nuanced because there are situations, say, your initial evaluation did include a related service area, maybe, and that’s come up. The parent’s not necessarily going to have a right to the IEE if you’ve never had an opportunity since that area has been suspected to even conduct that evaluation. When you get into those nuances too, make sure you have your council involved in those discussions as well.

Miriam: Very individual cases. Yes.

John: I imagine though that the parents would request the top of the line most expensive evaluation. What happens when parents and districts disagree about the examiner or the cost of the evaluation?

Lisa: Yes. That’s a good question. A lot of times parents do have their eyes set on a specific evaluator who may range in cost and that. The district should generally have a list of qualified examiners that they can provide to the parent within the general location and with reasonable cost criteria. Parents don’t also have to generally select specifically from that list. They’re almost like recommendations.

There are situations where parents can select a different examiner, but that examiner is still going to have to meet the basic evaluator criteria on qualifications that the district team had to meet. For example, if in your board policy, it lists certain criteria of certain training or things like that, that outside evaluator has to meet those requirements.

Miriam: Parents cannot just say, “Look, here’s my neighbor and my best friend. He doesn’t have any educational qualifications or any testing qualifications, but he’ll be very happy to evaluate my son for $10,000.” That’s not a reasonable request.

John: Are parents limited though to using the people that the district’s qualification criteria and location?

Miriam: That’s a good question. The district always has to allow for exceptions. A school district can definitely have geographic constraints, a list of qualified examiners, and we’ll talk about costs in a minute, reasonable cost parameters, but a parent always has to have the chance to explain why an exception should apply. This might be a child that has some very unusual medical needs or some complex involvement, and the parents should be able to explain, “Look, my child doesn’t fit into these categories or the evaluators that you have here or the geographic location parameters that you’ve set would be inappropriate to evaluate my child’s needs.”

Lisa: As you pointed out, often it is rare that that actually needs to be approved by the district, but you absolutely have to be open the conversation and their request and determine if it is appropriate for that child. There also are some criteria that a district just flat out can’t put, a parent for choosing a provider. Some of those things might be unaffiliated with private schools or parent organizations. You can’t say the provider can’t have those connections.

Miriam: You can see why some districts would want to put that in. If you’re concerned that an evaluator that has a connection to a private school is now going to evaluate this child, as the district, you might be thinking, “They’re going to evaluate this child and then of course recommend them to go to this private school at a huge cost to my district, so I’m just going to say no to that i.e., evaluator and I’m going to put in my policy that the evaluator has to be unaffiliated with any private schools.” That’s not allowed. You can’t set that criteria.

Lisa: Another thing you can’t do is require that that evaluator must have experience specifically in public schools. Again, you can see why a team would want the evaluator to have that experience, but as long as they’re qualified in other ways, you can’t put that restriction. You also can’t include an age or grade level score requirement for the report or the examiner has to attend the IEP meeting.

Miriam: Those are important criteria that some districts have tried to include and those have been struck down by hearing officers.

John: About a cost cut? Is that the same thing parents must be allowed to show an exception to that or how does that work?

Miriam: Yes. Pretty much that’s correct. Generally, school districts may set reasonable cost containment criteria and prohibit unreasonably excessive fees. Now, that doesn’t mean that you can just say whatever the average is in your community. Communities are different, but you cannot say, “Look, the average cost for an evaluation in our community is $2,000 so $2,000 is the most that we’re going to pay.” You cannot set a cost criteria that is just simply an average. It has to be a range.

Once again, parents have to have the chance to explain why their particular situation is an exception and to show that their unique circumstances essentially justify a more expensive evaluation. The difficult part about this for districts is that, if the district disagrees with the parents on this, the district’s option is to file a due process complaint, which can be costly and time-consuming and resource consuming. More often than not, we see districts acquiescing because typically even an expensive IEE is going to be less time consuming and costly than a due process hearing.

Lisa: The key component of that analysis is, if parents asking that you find a higher cost and you’re saying no, you’re in essence denying their IEE request, and thus the same process mechanism goes into place of then you need to file due process. That’s where it does get more nuanced at that point.

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Miriam: That’s our episode on IEEs. Thank you so much for joining us. Thanks, John, and next time we will be talking about something interesting and exciting in the world of education law. Please join us next time and in the meantime, give us high marks. Give us high ratings on iTunes and Stitcher. Have a great day.

Lisa: Thanks for listening.

Miriam: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon the advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of the information contained in this podcast.