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Can the District Limit What They Will Pay for an IEE?

02/28/13
by Pam Wright

Can the school district set a predetermined dollar amount as a cap on the cost of an IEE?

No. There is no provision in the law that allows districts to limit the cost or that requires parents to pay a portion of the cost of an Independent Educational Evaluation (IEE).

The regulation about the parental right to an independent educational evaluation is 34 CFR §300.502 (Wrightslaw: Special Education Law, page 252-253).

A few years ago, OSEP issued a letter to clarify that parents have the right to select an evaluator of their choice.

Since the letter was written in 1994, the regulations cited were for IDEA 97, and may be slightly different in IDEA 2004.

In a nutshell, parents have the right to select an evaluator of their choice.

In some cases, the evaluator may not meet agency criteria. The district has the option of requesting a due process hearing to get a ruling that their evaluation was sufficient.

If the district does not take that step, it must pay the cost of the IEE. There is no provision in the law that allows districts to limit the cost or that requires parents to pay a portion of the cost of an IEE.

“Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent…”  34 CFR §300.502 (a)(1)(ii)

Selecting an Evaluator from the “Approved” List

In response to school policies that require parents to select an evaluator from a list of “approved evaluators,” the Office of Special Education Programs (OSEP) published this Policy Letter that clarifies that parents have the right to choose their independent evaluator.

On Wrightslaw, you will find the letter here:   http://www.wrightslaw.com/info/test.eval.choice.osep.htm

Or you can download this policy letter about Independent Educational Evaluations and Evaluators from the U. S. Department of Education site at: http://www.ed.gov/policy/speced/guid/idea/letters/2004-1/parker022004iee1q2004.doc

It is not inconsistent with IDEA for a district to publish a list of the names and addresses of evaluators that meet agency criteria, including reasonable cost criteria.

This can be an effective way for agencies to inform parents of how and where they may obtain an IEE.

In order to ensure the parent’s right to an independent evaluation, it is the parent, not the district, who has the right to choose which evaluator on the list will conduct the IEE.

Choosing an Evaluator Not on the School’s List

We recognize that it is difficult, particularly in a big district, to establish a list that includes every qualified evaluator who meets the agency’s criteria.

Therefore, when enforcing IEE criteria, the district must allow parents the opportunity to select an evaluator who is not on the list but who meets the criteria set by the public agency.

In addition, when enforcing IEE criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify the selection of an evaluator that does not meet agency criteria.

In some instances, the only person qualified to conduct the type of evaluation needed by the child may be an evaluator who does not meet agency criteria. For example, because children must be assessed in all areas related to the suspected disability, there may be situations in which some children may need evaluations by an evaluator who does not meet agency criteria.

In these situations, the public agency must ensure that the parent still has the right to the IEE at public expense and is informed about where the evaluation(s) may be obtained.

Therefore, if a parent elects to obtain an IEE by an evaluator not on the public agency’s list of evaluators, the public agency may initiate a due process hearing to demonstrate that the evaluation obtained by the parent did not meet the public agency criteria applicable for IEEs or there is no justification for selecting an evaluator that does not meet agency criteria. If the public agency chooses not to initiate a due process hearing, it must ensure that the parent is reimbursed for the evaluation.

A few years ago, Gary Mayerson (an atty in NYC) wrote a book about how to advocate for children with disabilities. He included a sample letter that parents can use to request an IEE by an evaluator who is not on the school’s “approved list,” or when parents are advised that they must use an evaluator on the school’s “approved list.” You can tailor this letter to your circumstances.

http://www.wrightslaw.com/info/test.iee.mayerson.htm

 

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5 responses so far ↓

  • 1 Lori 04/16/13 at 9:11 pm

    My school district did not accept my IEE, and said it was against IDEA, though it was not. They stated they wanted to get their own IEE, which they stated I had no right to help decide. This was over a month ago. They still have not obtained an evaluator. I feel they are putting off the evaluation until after my son turns 21 or as long as possible. How long do they have to get teh evaluation done?

  • 2 michelle 04/07/13 at 11:14 pm

    the IEP meeting for my son was scheduled by an area education agency person. i will have an advocate with me from an outside agency. the same area person says he represents the school, which i corrected him saying no his job is to represent the family and the student. he said he didnt want to invite a million people to my sons iep meeting when i requested he invite the teacher they send to our home 3 hours a week. why a special ed teacher who does not work with my son will be at the meeting? cause one is required. the inhome teacher is not certified and my son is unable to attend school in a school setting. hm. also in attendance is a principal of the school he doesnt attend. the area guy is acting as a school psychologist for the same school. a behavior disorder school my son had been placed at incorrectly based on his disability.

  • 3 Todd 03/12/13 at 6:18 am

    In Massachusetts, school districts can, and often do, cap the cost of an IEE by refusing to pay more than the hourly rate for testing established by the MA Rate-Setting Commission some 16 (!) years ago. This is so low that only a small handful of evaluators will accept it. The fact that they may meet public agency criteria, or that their services will be provided at no net cost, is a very far cry from the notion that parents are entitled to the evaluator of their choice. Not all evaluators are created equal….

  • 4 Pam Wright 03/05/13 at 1:52 pm

    Patricia: I’m a little confused. You have students who are not placed appropriately? Re: “drive by observations”, does a person observe once, then say the student doesn’t need a program or service?

    The IEP team makes decisions about the services a student needs. The team must include the special ed teacher. As the teacher who is most knowledgeable about a student, you can request multiple observations at different times. This link will take to an article with good info about observations:
    http://nichcy.org/wp-content/uploads/docs/nd23.pdf

    The team cannot make placement decisions until after all other decisions about the IEP are made. The law does not allow districts to deny services because they are costly or the classroom is full (although money and staff time are often the real reasons why districts deny services).

  • 5 Patricia 03/02/13 at 9:52 am

    I’m a high school special needs teachers. I have a situation where students are placed or not placed in an appropriate setting due to their FIE. I have only been teaching about 10 years, but one thing I’ve seen is that when I have a student 7-8 hours a day and see how they really work and do well functionally, then to only have someone come “drive by” observation and just get a “snap shot” of what they think the student can do, the student is turned down for certain programs. Is there something I can do as the teacher to really push the issue and advocate for the student’s rights? This particular situation in a large district that has a special program for students from 18-20, that supposedly can only take 22 students. I’m being told too, that the district can deny a student since there may not be a large enough classroom.