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.